Críticas à mudança de paradigmas do STF acerca do princípio da presunção da inocência, a partir de Marcelo Neves

Abstract

The purpose of this paper is to analyze the thesis of the Federal Supreme Court regarding the possibility of arrest before the res judicata, that is, after the conviction in the second instance. Preference is given as a dogmatic subsidy to the thesis that deals with the principles and norms of the author Marcelo Neves, from the book “Entre Hydra e Hercules: princípios e regras constitucionais”. The discussion about the change of parameters that the Supreme Court used to arrest an individual before the res judicata of the process broke out with Habeas Corpus 152752, regarding the possibility of the arrest of former President Luiz Inacio Lula da Silva. Through the votes, were analyzed the legal arguments that ministers used to relativize the principle of presumption of innocence, in the case of those who voted in favor of arrest before the res judicata, but also analyzed the votes of those who stood against this early arrest. It was studied that, in these cases that made latent the present discussion, did not fit the hypotheses of pre-trial detention, resulting in an eminently technical debate about the parameters that would allow the relativization of the mentioned principle. Interestingly, such paradigm shifts have been taking place since 2009. Some of the ministers who have made up the role at the Federal Supreme Court since that time, have changed their thoughts and arguments with the change of cases and the course of time by itself. These votes, in particular, were confronted with the purpose of comparing the motivation of the changes against the penal scenario of the time. Marcelo Neves produces a thesis about principles and rules that allows the present writing the possibility of analyzing the justifications of the ministers' votes, between 2009 and 2018, under the technical eye of the mentioned author. He explains about the correct application of principles and rules in complex concrete cases, in order to provide the present article with the theoretical sustainability, necessary to arrive at a practical solution. The topic was of great relevance to the country because, despite having gained notoriety in 2018, due to HC filed against the ex President Lula, reflected in other judgments in which the possibility of early imprisonment was discussed, i.e. without the final judgment of the convicting criminal sentence.