DANTAS, G. D.; http://lattes.cnpq.br/6448556458159015; DANTAS, Gabriel Dias.
Abstract:
The innocence presumption principle dates back to Roman Law, in Trajano's writings, but
was, in fact, consolidated into a constitutional document from the 1789‟s French Revolution,
when it was contemplated in Article 9 of the Declaration of Human Rights and Citizen. Since
then it occupies a prominent position among the rights and guarantees related to the liberties
of citizens in democratic regimes, serving as a thermometer to analyze the essence of any
criminal justice system. In Brazil, not unlike, it has a seat in the list of rights and fundamental
guarantees, more precisely in article 5, LVII, under the form of a presumption of "non culpability", a not very dense writing that lacks confrontation with other constitutional
provisions and with provisions of International Treaties and Conventions to which Brazil is
bound; as well as the need for careful historical analysis to gauge its real content. The
principle under analysis has two main ramifications, one probative rule and one treatment
rule. The first imposes on the state in its entirety the duty of proof in criminal proceedings; the
second prevents the granting of coercive measures against criminally investigated before the
transit of conviction. The present investigation deals with the provisional execution of
custodial criminal sentence after condemnation in second degree of jurisdiction,
problematizing this hasty fulfillment of sentence before the institute of the presumption of
innocence, in particular, as a rule of treatment. In order to clarify the subject, the method of
dialectical approach, historical and comparative procedure methods, is the qualitative
approach and the technical bibliographical-documentary procedure: in doctrine, case law and
the analysis of applicable legal provisions.
