Appeal by the defendant at liberty

a reinterpretation of arts. 594 of the Brazilian Code of Criminal Procedure and 35 of Law 6,368/76

Authors

  • Weber Martins Batista Universidade do Estado do Rio de Janeiro, UERJ, Brasil image/svg+xml

Keywords:

Presumption of innocence, Pretrial detention, Appeal at liberty, Heinous crimes, Provisional release

Abstract

The text examines the compatibility between the requirement of imprisonment to appeal, provided for in art. 594 of the Brazilian Code of Criminal Procedure, and the constitutional principle of the presumption of innocence, concluding that pretrial measures do not offend it, since they are based on a judgment of dangerousness, not of guilt. It criticizes the formulation of the presumption of innocence, arguing that the defendant is prosecuted only because there are indications of guilt, and defends that the constitutional norm serves as a limit to the treatment of the accused, not as a prohibition of pretrial detention. It analyzes the non-bailability and non-eligibility for provisional release in heinous crimes, concluding that the constitutional norm covers both, and that § 2 of art. 2 of Law 8,072/90 prevails over art. 35 of Law 6,368/76, allowing, in any crime, appeal at liberty by reasoned decision.

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Author Biography

Weber Martins Batista, Universidade do Estado do Rio de Janeiro, UERJ, Brasil

Desembargador no Rio de Janeiro e Professor de Direito Processual Penal - UERJ.

References

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Published

1995-04-01

How to Cite

BATISTA, Weber Martins. Appeal by the defendant at liberty: a reinterpretation of arts. 594 of the Brazilian Code of Criminal Procedure and 35 of Law 6,368/76. Brazilian Journal of Criminal Science, São Paulo, v. 10, n. 10, p. 151–156, 1995. Disponível em: https://publicacoes.ibccrim.org.br/index.php/RBCCRIM/article/view/3396. Acesso em: 20 oct. 2026.

Issue

Section

National Doctrine
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