A interpretação do princípio da presunção de inocência: análise acerca da sua mutação no âmbito do Supremo Tribunal Federal

Abstract

This dissertation intended to perform an analysis of the interpretation of the presumption of innocence from recent decisions by the Federal Supreme Court on habeas corpus nº 126.292/SP, declaratory actions of constitutionality nº 43 and 44 and extraordinary appeal nº 964.246/SP, which allowed the return of the thesis regarding the provisional or anticipated enforcement of the criminal sentencing, restricting the reach of the rule of article 5, subsection LVII, of the Federal Constitution (1988). The presumption of innocence is a fundamental guarantee assured by international treaties and conventions of human rights, acting, in Brazil, with a status of a guiding principle for the criminal procedure rules. Meanwhile, through the referencered decisions, the Supreme Court authorized the possibility of the beginning of the criminal penalty before the definitive formation of guilt, as long as it is respected the right for appeal, using, as one of their arguments, the alleged occurrence of the phenomenon of constitutional mutation. Subjacent to this interpretative change, it is noticeable the rise of criminality and repression from Brazilian’s public security organs, reaching an unprecedented historical moment in our country, when it prevails a culture of punitivity and expansion of criminal system, with the symbolic use of prison as an instrument to resolve crimes and the sense of impunity. Aspects of midiatic influence, phenomenon of criminal/judicial populism and mass incarceration were also studied, in addition to matters regarding criminal policies in Brazil and the subversion of a system of guarantees, with measures of exception gaining protagonism in the Judiciary, increasingly gigantic and repressive. At last, after a historical- comparative analysis, with a timely clipping limited to the period after the Military Dictatorship (1964), it was verified the criteria used by the doctrine regarding (in)constitutional mutations, compared and contextualized with the arguments of the studied decisions.