THE FULFILLMENT OF THE PENALTY AFTER DECISIONS IN SECOND INSTANCE IN THE LIGHT OF THE PRELIMINARY RULING OF ROBERT ALEXY

Abstract

This article analyses the Federal Supreme Court’s decision that established the understanding on the possibility of serving time after condemnation at second degree of jurisdiction. The aim of this paper is to verify, under the light of the doctrine of principle-weighting, as explained by Robert Alexy in his work "Theory of Fundamental Rights", if the understanding set by the Federal Supreme Court would offend, to some extent, the principle of presumption of innocence.The issue encompasses conflict between two principles that foresee fundamental rights of the greatest extent: on the one hand, the principle of presumption of innocence, and on the other, the principle of forbiddance of deficient protection, which upholds the need of an efficient and effective criminal system. We lead the paper by explaining the principles in question and their ensuing conflict. We follow by pondering on Robert Alexy's Law of Balancing and conclude by analysing the decision taken by the Federal Supreme Court, taken in habeas corpus 126.292/SP. We concluded that the understanding of the principle of presumption of innocence, despite its importance as a fundamental right, should not occur only in a literal and absolute way. Instead, it should be weighted against other values, respecting the requirement of an efficient and effective criminal system, as held by the principle of forbiddance of deficient protection.