THE PROVISIONAL EXECUTION OF THE PENALTY UNDER THE VIEW OF JUDICIAL ACTIVISM

Abstract

This article deals with the provisional execution of the sentence under judicial activism, especially in view of the decision handed down by the Federal Supreme Court in the judgment of Habeas Corpus 126,292 / SP. The subject is approached from the perspective of doctrine and jurisprudence, given the divergence about the possibility of provisional execution of the sentence before the final decision of the conviction. The method used in the research is the inductive-deductive, being discussed, first, about the criminal procedural guarantee of the presumption of innocence, then on the main reasons set out in Habeas Corpus 126.292-SP and, finally, on the possible judicial activism of the Supreme Federal Court in the judgment of said constitutional remedy. The study is concluded with considerations regarding the re-signification of the principle of presumption of innocence from the point of view of judicial activism.