O julgamento da presunção de inocência no Supremo Tribunal Federal, Artigo 283 do CPP segundo a visão de Hart

Abstract

With the advent of the 1988 Federal Constitution, art. 5º, LVII (“no one will be found guilty until a convicting criminal sentence is passed”) enshrines the principle of the Presumption of Innocence as an individual constitutional right. From 1988 to 2009, it was decided according to the specific case. The STF's understanding was established, preventing the arrest after the second degree trial in 2009. The Brazilian Supreme Court in 2016 declared the possibility of arrest after the second degree decision. The decision ignited the controversial issue and prompted statements by the main Brazilian legal institutions. In November 2019, by 6 votes to 5, the Supreme Court declared the constitutionality of the provision of the Code of Criminal Procedure which states that no one can be arrested before the end of the process (the so-called unappealable transit). This means that second-level conviction alone is no longer sufficient to arrest someone before the appeals possibilities are exhausted. Celebrated in all the constitutions of the modern world, renowned in the main international juridical courts, the presumption of innocence has overflowed its roots since the time of the Enlightenment and presents itself as one of the vital fundamental rights of our 1988 Constitution. it is intended to critically expose the normatization of this constitutional guarantee, as well as its understanding by the Brazilian Constitutional Court. To this end, we will analyze the guarantee of the presumption of innocence with the Code of Criminal Procedure, also using the analysis of the systematic consequence of the appeals of the domestic procedural legislation.