A MITIGAÇÃO DO PRINCÍPIO DA PRESUNÇÃO DE INOCÊNCIA CONFORME O HABEAS CORPUS NÚMERO 126.292 SÃO PAULO

Abstract

This research aimed to examine whether there was a mitigation of the constitutional principle of the presumption of innocence in the decision from the Federal Supreme Court in HC nº 126.292/SP, which began to authorize the execution of the sentence before the final and unappealable sentence of the condemnatory criminal sentence. It proved to be relevant to discuss this issue, because, although this decision does not have an erga omnes effect, all jurisdictional bodies began to follow the same understanding of the Federal Supreme Court in its role as guardian of the Constitution. To this end, in addition to the case study of the judgment in HC nº 126,292/SP, important considerations were outlined on the principle of the presumption of innocence and preventive detention, through which it was revealed that the non occurrence of the final and unappealable decision of the conviction definitive obstacle to the beginning of the execution of the sentence. In the end, it was possible to conclude that the arguments of the winning Ministers mitigate the principle of the presumption of innocence, because they relativize the meaning and scope given by the Constituent Assembly, and do not prosper from the point of view of constitutionality, because they create a type of prison without the observance of the rite provided for the creation of new laws