Abstract:
The present study addresses aspects related to the (un)constitutionality of prison
after a second instance decision, analyzing the changes in the jurisprudence of
the Federal Supreme Court between the period corresponding to the year 1991
to 2019; as well as bringing to light the respective effects on legal security. In
addition, it discusses the basic principles that guide the Brazilian legal system in
the constitutional and criminal procedural sphere. What is problematized in this
research proposal is the fact that changes in the Supreme Court's jurisprudence
collaborate to consolidate insecurity in the Brazilian legal system, in contradiction
with the special and essence of law in its principled aspects.The proposed study
is based on bibliographical research, through a qualitative approach, using books
from the FacMais library collection, as well as texts from academic research
websites, scientific articles, monographs and thesis, and above all the
jurisprudence of the Federal Supreme Court more specifically, Habeas Corpus
126.292 / 2016 and 152.752 / 2018 and Declaratory Actions of Constitutionality
43, 44 of 2016 and 54 of 2018. After collecting the data, a comparison of the
theoretical and legal discussions is established, which consolidate the
conclusions on the subject under study. It appears, through the research, that the
Federal Supreme Court changed its understanding four times between the years
1991 to 2019, the last two in a 3-year gap. That fact, if on the one hand
demonstrates the complexity of the subject , on the other hand, it reveals the
instability of the Supreme Court when facing an issue, triggering negative
consequences to the constitutional legislation. Finally, despite being against the
current understanding of the Supreme Court, the conclusion of this research is in
the sense of the constitutionality of the after decision in the second instance,
because, in addition to not violating the principle of the presumption of
innocence, it contributes to reducing the sluggishness of justice, as well as the
sense of impunity, also preventing the prescription of punitive claims, as well as
enabling a more effective counterpart to the society.
