THE CONSTITUTIONAL PRINCIPLE OF PRESUMPTION OF INNOCENCE WARRANTY (OR OF NON CULPABILITY): A DIALOGUE WITH THE RIGHTS AND FUNDAMENTAL WARRANTIES

Abstract

The presumption of innocence principle operates itself between the procedural guarantees of due process of law and of the fundamental warranties. Such standard, proposed in international normative acts and in the infraconstitutional legislation is being reinterpreted in the increasing of its relativization pursuant to the substance and the context that better express the values of the Federal Constitution. In the trial of habeas-corpus 126.292/SP, the Federal Supreme Court (STF) has broadened its jurisprudential analysis and adopted an understanding in order to allow the provisional enforcement after the criminal conviction in second instance court. In the precautionary measure in HC 135.100/MG, the Justice Celso de Mello understood that the provisional execution of the sentence by the Justice Court of Minas Gerais, in result of first-instance criminal condemnation, still challengeable, which dispels presumption of innocence and prioritizes the presumption of culpability constitutes in an unacceptable inversion for being an essential prerogative that only disfigures itself with the criminal condemnation sentence rendered final. Still provided by the inapplicability, in case, of the judgment of the plenary of HC 126.292/SP that was delivered in process of a mere subjective profile, without a binding effect acting only as paradigmatic reference, and not as binding agenda of judgments that does not impose itself to the compulsory observance of the judges and Courts in general. It’s a theoretical-bibliographical-natured research guided by a descriptive-analytical method about related laws, as well as the doctrine that informs the concepts of dogmatic order.