Principles of the presumption of innocence and non-guilt

distinction, application and scope

Abstract

Although the presumption of innocence—or non-guilt—is a universal principle inherent to legal systems in general, it was only enshrined as a fundamental right in the Brazilian legal order by the 1988 Constitution. Even so, given the wording chosen by the framers, there is heated debate among legal scholars and in case law, particularly regarding the precise terminology of the constitutional clause and its scope. A comparative law perspective leads to the conclusion that our system actually encompasses the principle of the presumption of innocence as a broad category, comprising two specific sub-principles: the presumption of innocence *stricto sensu* and the presumption of non-guilt. In summary, the former—aimed at protecting personal honor and reputation—prevents formal indictment, the filing of criminal charges, or the acceptance of a criminal complaint without the existence of "just cause" (i.e., evidence of the material fact of the crime and indications of authorship); the latter comes into play regarding judicial rulings where the judge might otherwise make a determination of guilt. The principle of the presumption of innocence applies most directly to the actions of police authorities and the Public Prosecutor's Office, while also extending to judicial decisions that do not involve an examination of the merits regarding guilt. Conversely, the principle of the presumption of non-guilt primarily governs the judge's conduct; from it derives the maxim *in dubio pro reo* (when in doubt, rule in favor of the accused), applicable as long as there has been no formal judgment of guilt—specifically a conviction by a court, which exhausts the discussion of factual matters.