O excesso de prazo na prolação de sentença penal: uma análise da súmula no 52 do STJ nas decisões do Tribunal de Justiça do Maranhão

Abstract

In the current Brazilian legal system, the Criminal Procedure is one of the representative facets from the law constitutional achievement to the legal proceedings (art. 5th, LV, CF). Nevertheless, some situations have been emerged inducing questions about the real enforcement of this constitutional promise. The abridgment no 52 from the Superior Court of Justice represents this situation, once it can turn the process into a real weapon against the minimal guarantees conceded to the accused. What occurs is that, based on this abridgment, when surpassed the criminal instructional step, the defendant will be dismissed from the possibility of questioning eventual constraint due to the overtime. Consequently, the end of the instruction does not warrant the immediate pronunciation of the sentence. Actually, because it is about an inappropriate deadline, the excessive delay is very common. It is worth mentioning that there is not an uniform agreement from the court of law related to the procedural moment in which the instruction ends, fact that might injure many of those whom, in the occasion, need to claim this undue constraint, especially whether in a preventive detention situation. Therefore, what can be observed is a real disrespect to the rights related to the duration of the proceedings (art. 5th, LXXVIII, CF), to the presumption of innocence (art. 5th, LVII, CF), to the habeas corpus (art. 5th, LXVIII, CF) and to the freedom of movement (art. 5th, XV, CF). Furthermore, the Court of Justice from Maranhão has been using, meaningly, the associated abridgment to contest the writs order, although there are judges of appeal from this respectful Court with more flexible statements about the theme, because they make use of the proportionality and reasonableness lens, avoiding the negative effects from it. Therefore, is proposed, through this work, study the details, implications and effects of the abridgment no 52 from the Superior Court of Justice in the country’s legal order, proposing, in the end, a new redaction to the abridgment statement in due to avoid law controversies such as these. The present study justifies itself by the extreme significance of the theme to the individuals involved which have their rights impaired, specially the freedom of movement, because of the daily application of the note to reject the order to the habeas corpus filed in consequence of the overtime to the guilt formation, while the accused is found in preventive detention.