THE MITIGATION OF THE PRESUMPTION OF INNOCENCE AND THE RECOGNITION OF THE PRESUMPTION OF GUILT IN BRAZILIAN CRIMINAL LAW

Abstract

The STF - Supreme Court dismissed the habeas corpus n. 126,292 by modifying their understanding, to dismiss the appeal of the defense and determine that the provisional execution of the sentence whose sentence has been confirmed in the second degree court is possible, because there is, in this case, commitment to the principle of presumption of innocence, provided for in the Federal Constitution, in its article. 5, LVII. Thus, the constitutional court famously answered the popular yearning for more effective fight against impunity, providing a legal response to society. However, there are many criticisms, especially because the Supreme Court one adjudicative body whose task is to apply the constitutional provisions and not manage the problem of public safety. Indeed, the penalty presupposes the agent's guilt and the constitutional provision in reference determines exactly that no person is considered guilty until the final and unappealable penal sentence. It started from the hypothesis that the paradigmatic trial, the research object, set a limit for the presumption of innocence, which is the confirmation of the conviction on appeal, prevailing from that timeframe the presumption of guilt with the defendant, leaving authorized the execution of a custodial sentence, even without the final judgment of conviction. Thus, the overall objective of the research is to see whether the decision of the highest court of the Brazilian Judiciary actually operated the mitigation of the principle of presumption of innocence, acknowledging the existence of another principle, which is the presumption of guilt in the Brazilian criminal law.