Execuções antecipadas de penas privativas de liberdade no procedimento do júri : uma análise crítica sob a ótica do julgamento do caso Boate Kiss.

Abstract

One of the most controversial legal provisions of the “anti-crime package” promoted the provisional execution of the sentence, whose criminal sanction is equal too or greater than 15 (fifteen) years of imprisonment, in a closed initial regime, in proceedings under the rite of the jury court, even that the res judicata of a condemnatory criminal sentence is absent. Thus, considering that the current Brazilian legislation establishes that decisions can be reversed and reformed by the second-degree jurisdiction after the rendering of a sentence by the presiding judge of the plenary, before the decision of the jurors in criminal proceedings under the procedural rite of Jury Court, the majority doctrine diverges from the recent amendment promoted by Law no. 13.964/2019 and its modifications to the criminal procedural system, considering that the recent variation directly affronts the Constitution of the Federative Republic of Brazil of 1988 and its basic principles contained therein, such as the pinciple human dignity and the principle of presumption of innocence. In view of this, analyzed the recent understanding given in the judgment of the “Kiss Nightclub Case”, occasion in which the magistrate of the first degree executed, in advance, before the rite of the jury court, the sentences of the defendants for the consummated murder of 242 people, as well as for the attempted murder of 363 other victims, who remained injured in the fire at the aforementioned nightclub, sentencing them to begin serving their sentences, even though there was no final sentence of a criminal conviction.