THE JURY COURT AND THE UNCONSTITUTIONALITY OF THE PROVISIONAL EXECUTION OF THE CUSTODIAL SENTENCES: AN ANALYSIS IN THE LIGHT OF CASE LAW AND THE MAXIMUM OF PROPORTIONALITY

Abstract

The article is about the possibility of provisional execution of custodial sentences imposed by the Jury Court in the Brazilian legal system. It is sought, based on the hypothesis that the measure is incompatible with the principles enshrined in the Constitution of the Federative Republic of Brazil of 1988, to expose the favorable and contrary positions, as well as to demonstrate their possible unconstitutionality. The study was developed using the deductive approach method, through a qualitative, descriptive, prescriptive methodology and based on bibliographic research, including books, articles, legislation and consultations in websites of public agencies, in addition to the placements of the Supreme Federal Court and the Superior Court of Justice,in order to enable a greater understanding of the Law nº13.964/19 and the principles of the sovereignty of verdicts, the state of innocence and the double degree of jurisdiction. From the analysis of these institutes and based on the proportionality rule, accordig to Robert Alexy’s theory of fundamental rights, the result obtained, through moral weighing required by proportionality in the strict sense, was in the sense that the immediate fulfillment of the Jury’s condemnations is not reasonable and violates basic principles of the democratic rule of law, and the right to freedom and the double degree of jurisdiction of the accused should prevail.