A (in)violabilidade do princípio da presunção de inocência no ordenamento jurídico brasileiro : na ótica da legislação, da jurisprudência e dos agentes públicos.

Abstract

The presumption of innocence is one of the fundamental rights that make up the list of article 5º of the Federal Constitution, more precisely, in subsections LVIII. Originating from natural precepts and human rights, it is still inserted in a foolhardy and infertile scenario for its realization. Given the importance of the natural and constitutional right to the presumption of innocence, being an extremely relevant institute to maintain civility and legal security, working as a brake on state arbitrariness, protecting Brazilian citizens and their freedoms, we question whether the State respects such constitutional prediction. More precisely, we address three points: legislation, jurisprudence and public agents. In the first point, we investigated nodal points in the legislation, through the delay of the Code of Criminal Procedure (CPP) in adapting to the prosecuting system and the early execution of the sentence after sentencing in the first degree in the Jury Court, in the content of lines "a", subsection I, of article 492 of the CPP. Within the scope of jurisprudence, we are faced with the trivialization of preventive detention and the use of the adage in dubio pro societate. In turn, in the last focus, we discuss the exercise of public agents, more precisely magistrates and Police Authority. The approach was qualitative, the objects followed the descriptive model and the approach method was deductive. For that, the bibliographic research technique was used. In the first point, it was found that several articles of the CPP are not following the presumption of innocence, as they design diverse instructive powers to the judge. Furthermore, early execution of the penalty after sentencing in the first degree in the Court of Jury is unconstitutional, as there is no correspondence in the Federal Constitution, which provides that no one will be found guilty until the criminal sentence is final and unappealable. As for the second point, we highlight the trivialization of preventive detention, which is used as a real penalty for early imprisonment. In turn, the in dubio pro societate does not find any principled, constitutional or natural support, being used as a substitute for the in dubio pro reo, signatory of the principle of presumption of innocence. As for the third and last point, we conclude that the judge must strictly follow the dictates of the law and natural and human rights, abandoning the false activist and justice-oriented ideas, which serve as a substrate to demean the state of innocence. Likewise, we see the (still) inquisitive roots of the police investigation, in which the Police Authority also must guarantee the human and constitutional rights of those investigated, above all the presumption of innocence. From the focused realities, we found that the legal system does not respect the presumption of innocence. The presumption of innocence does not have strong roots, nor in fertile ground, as the routes of collision of this principle with other perspectives of the legal system are many. Because of the grandiosity of the debates and the limitation of the space for discourse, we suggest studies regarding public order as a presupposition for the application of preventive detention, regarding its possible unconstitutionality, as well as regarding the exercise and powers of magistrates and the nature of the police investigation, as these are still subjects that are severely discussed and that find opinions from all directions.