O constituinte, a execução antecipada da pena, Ulisses e as sereias: entre mutação constitucional e compromisso em Jon Elster

Abstract

This work has the objective of analyzing the (im)impossibility of constitutional mutation on the article 5º, LVII, of the brazilian federal Constitution, wich express the presumption of innocence. It starts from the perspective of Jon Elster, according to which the constitutions establish previous commitments, as well as those that Ulysses signed in the Odyssey of Homer, that assume outstanding relevance in moments of crisis or of tension. Such commitments are made through (self) limitations or (self) restrictions, which are expressed, in constitutionalism, within the limits of the mechanisms of constitutional change. For that, the concepts of constituent power and constituted powers will be presented, considering the limited nature of these. Then, the concept and limits of constitutional mutation, according to the traditional German doctrine and the doctrine spread in Brazil, will be examined, stating that this is in line with Elster's view. Finally, from the limits inherent to the constitutional mutation extracted from the doctrine, a complete analysis of the (im) possibility of its occurrence on article 5, LVII, of the brazilian federal Constitution, will be made, allowing for the provisional execution of the criminal sentence, before the final and unappealable decision – and whether this permission implies the breach of those prior commitments.