Presumption of innocence in Brazil between law and politics: as an interpretation

Abstract

The initial objective of this research was to develop a critical-dogmatic analysis of HC 126,262, with the intention of identifying the legal, but especially political, foundations in the interpretation of fundamental rights that justified the supposed overruling. In other words, the intention was to identify, in the rapporteur’s reasons, the illegitimate political foundations that reduced the scope of the principle of presumption of innocence and to propose a constitutionally adequate interpretation of the democratic criminal process. Initially, the essential aspects of the principle of presumption of innocence were studied, such as its content and scope, contrasting it with the analysis of the judge responsible for reducing the protective nature of this guarantee, HC 126,292. Then, a critical analysis was made, in the light of respectable dogmatic doctrine, of the foundations of that decision with the aim of demonstrating and developing the interpretative line regarding the presumption of innocence that can be considered appropriate to the criminal process of a democracy. The paradigmatic Declaratory Actions of Constitutionality (ADCs) 43, 53 and 54 were summarized and, finally, a prognosis and exhortation to the new democratic resistance for the effectiveness of the presumption of innocence were made.