The Provisional implementation of the penalty after the condemnation in second instance and the loss of the office, public function or elective mandate as an extrapenal effect of the condemnation

Abstract

The Federal Supreme Court, in the judgment of Habeas Corpus No. 126,292, in interpreting Article 5, item LVII, of the Constitution of the Republic / 1988, held that those persons convicted in the second instance should commence, after this moment and before the res judicata, the fulfillment of the penalty. From then on, numerous controversies arose among the legal operators concerning the provisional execution of the sentence. In the present article, a study will be made about the primary purpose of the presumption of innocence principle from the perspective of the entire constitutional system and the uniqueness of the legal system, in order to analyze the conformation of the position adopted by the Supreme Court to the homeland legal system. . Then, it will be analyzed the moment when the extrapenal side effect of the loss of the position, civil service or elective mandate should occur, if after the conviction in the second instance, or the final judgment of the conviction should be awaited.