Prisão antes do trânsito em julgado no Brasil: história argumentativa das teses de inconstitucionalidade da execução provisória

Abstract

This thesis tells the history of the cases for the unconstitutionality of the imprisonment by appealable convictions in Brasil. It produced a complete historic-legal study of the jurisprudence of the Brazilian Constitutional Court (“STF”), from 1970 to 2009. A verifiable database was created. A deeper analysis was provided on each of the main rulings of the STF, from 2009 to 2019. A tracking and mapping method was developed to study the legal reasoning. A study was provided on the legal articles published between 2019 and 2021.These articles allow a contextual analysis of the final stage of the evolution of the legal doctrine on the subject. The result of this thesis was the unveiling of the history of the ascension of the “strict preventiveness exclusivity theory”. The theory was brought up by the legal doctrine, originally as an insurgence against the compulsory preventive arrests and ended up eliminating all types of anticipated punitive and ex lege imprisonments. Over the years, the justices that upheld the original precedent made concessions to this ascending theory. Because of such concessions, a vacuum pocket of reasons took place. In 2008, the mandatory imprisonment as a requirement to appeal was revoked. In 2009, the STF overruled the precedent and declared unconstitutional all imprisonment by appealable convictions, even while pending only appeals to higher courts. The original and unrevoked criminal procedural rules were rendered void. Only in 2011, the criminal procedural code was altered. Imprisonment by appealable first-degree conviction was officially revoked. A new rule was created (article 283). Prior to the official notice that the lawsuit has ended, all imprisonment must be preventive. All punitive imprisonments decreed prior to the end of the lawsuit were prohibited. Not prior to the end of the right to appeal, prior to the termination of the procedure, which is the official notice issued by court. The upholders of the original precedent never recovered from that. For a brief period, between 2016 and 2019, the STF reinstated the constitutionality of the imprisonment by second-degree appealable convictions. But, even then, it grounded the ruling on preventive reasons. Punitive imprisonment immediately after conviction became a constitutional taboo. The strict preventiveness exclusivity theory became a dogma. In 2019, the STF, in its most recent ruling, decided that the article 283 is constitutional. Imprisonment by second-degree appealable convictions was once again prohibited. However, the ratio decidendi of the ruling did not ground the prohibition on constitutional grounds. It grounded the prohibition on the legislative autonomy of the congress. Therefore, according to the ruling, congress may reverse the situation by simply revoking article 283. The legal doctrine undertook to misguide the interpretation of the ruling and pretended that it restored the 2009 precedent. It has defended that the legislation cannot be altered back, not even with an Amendment to the Constitution. Opposing that movement, this thesis shows that the strict preventiveness exclusivity theory is not constitutionally mandatory. This thesis reasoned that imprisonment by appealable convictions cannot be unconstitutional under the current Brazilian Constitution.