Presumption of innocence is questionable
Article in Correio Braziliense, on 19/12/2018, questioning the absolute reach of the presumption of innocence after an STF decision on execution of sentence at the second instance.
Translated from the original.
The Clean Slate Law was an advance in the civilizing achievements of Brazilian society. More than that, the STF decided that the presumption of innocence does not have absolute reach and, in line with developed countries, embraced the thesis that it is possible to enforce sentences after decisions issued by collegiate bodies at the second level of jurisdiction.
Before that, it was necessary to await the final and unappealable status of criminal convictions, which took an eternity in the face of dilatory appeals and maneuvers that the Brazilian legal system allows.
Rulers tend to be careful with appointments when it comes to people who are defendants in criminal proceedings or improbity actions. However, one should reflect carefully on the abusive use of proceedings as if they were advance penalties. It is unacceptable to accept punitive proceedings based on slight evidence, especially when the oversight institutions hold robust investigative powers.
In addition, judicial or administrative proceedings cannot serve as instruments for destroying reputations, purely and simply. Therefore, the mere existence of a proceeding against someone, whether an individual or a legal entity, does not, in itself, amount to a judgment of censure.
It is important to ascertain the evidence in the case file and the plausibility of the State’s punitive claim. It is fundamental to realize that, beyond the proceedings, there is a growing prospect of demanding results from the accusatory state machinery.
The benchmarks of the current normative system are rigorous: the legislation allows execution of the sentence from a decision of ordinary courts, and precautionary measures based on the evidence of the right invoked.
It is time to demand quality in the investigative power of the authorities, so that the pillar of legal certainty may be safeguarded as much as possible. Impunity rates will be reduced to the extent that institutions function in an integrated manner and gather evidence.
Certainly, plea cooperation agreements lacking corroborating evidence tend to lead to the demoralization of the law itself and of the institutions that handle it. If an authority investigates a given target for a long period, it is not viable to bring an indictment based on slight evidence, and that parameter serves both the criminal sphere and administrative sanctioning law.
The role of the press is to report and to practice investigative journalism, opening space for substantive adversarial debate. Collateral damage exists and is inherent to the political and economic environment, given that scandals arise from proceedings and investigations, but the principle of responsibility is also correlative and must be proportionately weighed.
There is, however, no room for censorship, of whatever nature. What should be valued is the quality of the formation of public opinion, of punitive proceedings, of investigative power and of oversight mechanisms. The fact that someone is subjected to an investigation or proceeding is not a factor excluding citizenship, much less a certificate of guilt. The Brazilian legal model is already rigorous enough that one should not overstep and build additional draconian instruments incompatible with any democratic regime.
However, when serious facts emerge, it is for public opinion, journalism, and those in government, through careful and prudent analyses, to adopt the appropriate measures, within their spheres of competence.
It is always good to remember that the Executive has the so-called discretionary space for decision. And society may evaluate its rulers in an open, critical and plural manner, through its own channels, based on an ever richer and more intelligent awareness.
In sum, it is not just any proceeding, or investigation, that will tarnish the life of a legal entity or a public figure. However, it is not necessary to await the outcome of an investigation or a proceeding to know that some measure must be adopted, when there are concrete elements in the face of robustly proven and serious facts.
Fábio Medina Osório is a lawyer and former minister of the Office of the Attorney General of the Union