Opinion: How (and Why) the Presumption of Innocence Became Controversial in Brazil

RIO DE JANEIRO, BRAZIL – The presumption of innocence is one of democracy’s fundamental components — no country without it can rightly call itself a democracy. Yet, the question has vexed courts the world around, including most recently Brazil, where it may yet cause an institutional crisis.

First How: constitutional histories

Brazil’s 1988 Constitution copied articles from two European constitutions – Portugal (1976) and Italy (1947)– containing essentially the same wording – no accused person shall be considered guilty until a criminal sentence becomes final.

All of these constitutions were reactions to oppressive dictatorships that had recently ended – Portugal after Salazar, Italy after Mussolini, Brazil after the military dictatorship.

Dictatorships never presumed innocence. Citizens accused of crimes had no right to a fair trial: the judicial branch was emasculated. As a result, innocent people had no right to defend themselves at trial or upon appeal. Habeas corpus was suspended.

The post-dictatorship constitutional conventions were all determined to prohibit that from ever happening again. They extended the presumption of innocence until the final judgment of cases, to ensure the protection of this essential right.

Brazil’s 1988 Constitution, enshrining the presumption of innocence until final judgment, was not adopted by a gang of corrupt politicians seeking to avoid jail. Its intent was to protect the innocent, not the guilty.

Second How: constitutional criminal courts

In most judicial systems, there are three levels of courts: first instance, or lower courts; second instance, or appellate courts; and third instance, or supreme/constitutional courts.

Most legal systems hold that the presumption of innocence does not survive a guilty verdict by the first instance finder of fact. Once convicted, defendants can appeal their sentences, but they are no longer entitled to be presumed innocent.

Brazil’s criminal procedure, as established by its constitution, is distinctly different from that of most countries.

First, there are no juries in most criminal cases: an individual trial judge is both the finder of fact and the applier of the law to those facts.

Second, convicted defendants have the absolute right to appeal to an appellate court, where a three-judge panel reviews the record and returns a verdict of guilt or innocence. Because the appellate court panel acts as a finder of fact, the accused is still entitled to the presumption of innocence.

Third, Brazil has both third instance and fourth instance court levels: the Superior Tribunal de Justiça (STJ) hears non-constitutional claims; the Federal Supreme Court (STF) hears constitutional claims.

Because of the 1988 Constitutional Convention’s zealous defense of the rights of the individual, most criminal convictions can be appealed to both the STJ and the STF.

Crucially, however, neither of these higher-level courts can make a factual determination of guilt or innocence—they must accept the guilty verdict determined by the second instance court of appeals.

Why: conflicting constitutional interpretations

The recent STF decision pinpoints how and why the presumption of innocence has become controversial — the supreme court justices have diametrically diverging interpretations of the meaning of a “final” judgment.

Five STF justices held that, once a second instance appellate court has issued a verdict of guilty, that decision is final because no further appellate court can challenge the fact of guilt.

Five STF justices held that the literal language of Art. 5-LVII should prevail, and that innocence must be presumed as a matter of law, even if not as a matter of fact.

Chief Justice Toffoli, idiosyncratically, chose not to interpret the constitutional clause, but rather a statute. He concurred with the specific decision of five justices favoring releasing the accused, but not with their opinions.

The future (?): constitutional amendments  

The controversy will not go away, as Congress seeks (constitutional) ways to overturn a highly unpopular 6 – 5 decision that grants freedom to almost 5,000 convicted criminals, as they pursue their third (STJ) and fourth (STF) instance appeals, notwithstanding two successive guilty verdicts.