A execução provisória de pena privativa de liberdade após condenação em segunda instância à luz do princípio da presunção de inocência

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.