O princípio da presunção de inocência e análise dos antecedentes do réu: um exame da circunstância judicial e seu reflexo como um direito penal do autor

Abstract

The penal process consists of a series of safeguards that protect the defendant from exercising in excess of state punitive power. Among the prero gatives of the accused is the principle of the presumption of innocence, provided for in article 5, item LVII of the Federal Constitution, which prevents the defendant from being found guilty until the transit on trial of the penal sentence. In contrast to the alluded precept, one has to consider the antecedents of the accused in the first phase of the sentence dosimetry, a judicial circumstance whose contente is widely discussed by the doctrine and jurisprudence, with no absolute positionings on the subject. There is a mismatch between the principle mentioned and the weighting of the defendant’s antecedents in the dosimetry of the penalty, since this represents the formation of a presumption of guilt based on the construction of a profile of the accused, who suffers the criminal repression in more severe intensity by virtue of what he appears to be and not by what he did, which represents a criminal right of the author and not a criminal right of the fact.