AS ALTERAÇÕES NO CÓDIGO DE PROCESSO PENAL PELA LEI 13.964/2019 – ANÁLISE DO ARTIGO 492, I, e, CPP

Abstract

This paper aims to analyze the changes made to article 492 of the Code of Criminal Procedure, with the enactment of Law 13.694/2019, since the issue related to the provisional execution of the penalty, already dealt with by the STF in a past date, continues to survive as a ghost haunting the Brazilian criminal process, due to the changes brought about by the so-called anti-crime package. The legal change consists of the automatic execution of the penalty, when the conviction for committing a felony against life occurs in an amount equal to or greater than 15 years. To analyze the legislative change, the methodological procedure adopted is bibliographic, by examining texts, articles and books dealing with the subject, as well as court decisions, notably those issued by the STF. With the analysis of the texts and decisions raised, it can be seen that many of the changes promoted by Law 13.964/2019 in art. 492, I, and of the CPP, are unconstitutional, most of which authorizes the immediate execution of the penalty, because it affronts several guiding principles of the criminal procedure, especially: the presumption of innocence and the requirement of a condemnatory decision with final judgment as a condition for the acknowledgment of guilt and the consequent application of the penalty. Consider the new wording to art. 492, I, e, of the CPP is to bury the Constitution in what is most valuable to the accusatory structure of the criminal process, in addition to subverting the logic that guides the functioning of the jury court, also instituting differentiated treatment for the processes that determine the different criminal types.