Da discricionariedade judicial: de voluntarismos a autoritarismos e a (im)possibilidade de execução provisória de pena antes do trânsito em julgado da sentença penal condenatória

Abstract

This research aims to establish a reflection upon the possibility or not of enforcing a conviction before all appeals are exhausted. In order to accomplish that, it will review the votes announced by Justices Luis Roberto Barroso and Ricardo Lewandowski in the habeas corpus 152.752, which deals with that matter. To answer the initial question, it starts from a broader context that examines the discretionarity in terrae brasilis and the fact that the improper use of the so called neoconstitutional theories are stimulating the free attribution of meanings by the interpreter. To demonstrate and factually denounce the probem of discretionarity, concrete cases of judicial praxis, in which the interpretation occurs with an exacerbated voluntarism, will also be reviewed. The background and cornerstone of this research is the interpretation and that is why it and its nuances will be examined. Here, interpretation is understood as an attribution of meaning exercised by an individual who is culturally and historically conditioned. In this plan, although it may be an attributive activity, the individual cannot fix the meanings according to his conscience, but must respect the inherent limits of interpretation in agreement with the Constitution of the Federative Republic of Brazil. Therefore, it regards as illegitimate an interpretation that gives the statement of section LVII of article 5th, of the Constitution of the Federative Republic of Brazil, a meaning that allows the provisional execution of a sentence.