by Eiiti Sato
Due to the noisy investigations such as those conducted by the “Lava-jato” Operation the media has exposed a remarkable contradiction of the Brazilian laws as well as of the interpretations of the Brazilian Courts regarding the principle of the presumption of innocence. From one side such a principle is denied to those who did not commit any crime while, on the other side, for those who are involved in crimes such as corruption and the various forms of fraud the principle of the presumption of innocence is systematically alleged both by lawyers and judges.
In Brazil every citizen is under suspicion
Unfortunately in Brazil individuals and firms are submitted by authorities to vexing and moral degrading procedures under the allegation of preventing crimes and illegalities. Those who did not commit any crime whether individuals or firms needing any kind of public service have to present many declarations, certified copies of documents, and face a heavy and vexing bureaucracy before getting the needed service. Worse than that there are reports of several cases in which someone is put in jail for weeks, even for months, due to the fact that his name is homonymous to another person wanted by the Justice. The procedures to release him are long and complicated, even when there are strong evidence that it has to do with a clear case of namesake. Actually there are so many situations in which the ordinary and innocent citizens are treated as liars or as fraudsters by authorities that it seems worthless listing them. The justification for such vexing procedures is always the allegation that such requirements are necessary to prevent violations, crimes, and the many sorts of fraud. What the authorities are doing by treating ordinary citizens as potential fraudsters and criminals is to deny them the principle of the presumption of innocence.
Nevertheless, on the other side, for those in power who are formally facing trials accused of any sort of crimes and law violations the principle of the presumption of innocence is always an argument to dismiss evidences, and to discredit witnesses and formal documents. Journalists have to be very careful in their wording when they have to release news about those facing trials suspect of some wrongdoings, specially if the criminal is under 18 years old. Recently the images of a luxurious flat full of cash money stored in cases and boxes shocked the whole population not acquainted with seeing some US$ 19 millions in cash. The flat was lent to an influential politician and the fact raises many questions which by no means do not match the principle of the presumption of innocence: where did the money come from? Who owns the money? Why the fingerprints of the politician were found in the packages of money? Why such a great amount of money was kept in cash? Nevertheless, obviously the politician and his lawyers have been arguing that the quite unusual facts showed by the media do not prove anything once the legal codes say nothing about keeping cash money at home even a great sum such as in the case. Another recent fact which goes in the same direction is the decision made by the Chamber of Deputies forgiving firms and individuals who did not pay their taxes in due time. According to the law approved by the Deputies the debtors were granted with the benefit of not paying up to 90% of fines and interest due on late payment. The justification to pass such a generous law to those who failed to accomplish the fiscal rules is the presumption that the debtors are innocent, and that they are honest individuals and firms which could not pay their taxes on the right time due to reasons (taxes too high, economic recession, or whatever) which made them unable to fulfill their honest desire to correctly accomplish their fiscal obligations. Obviously for those who have paid correctly their taxes the inevitable feeling is that they are been made fools of themselves.
Implications to political institutions
The question has implications to political institutions and to the very concept of citizenship. Democracies are essentially made of individuals holding freedom as a central prerogative of citizenship. His condition as a free individual grants him the right to be respected by institutions, and specially by State authorities. As a consequence individuals have the right to the prerogative of the presumption of innocence and have the right of not been treated as suspects by any state institutions and by authorities unless some clear evidence of committing wrongdoings comes out. A free society is a society made of free men and free women able to stand on their own feet, able to make decisions on their own, and obviously also able to respond before Justice by their deeds. In a free society prevention is not a justification to transform any citizen into a suspect.
In a non-democracy the people are viewed as a herd of suspicious individuals unable to make decisions by themselves; in a non-democracy no one is treated as citizen, but as suspect who need to be controlled in order to prevent society from crimes, cheatings, frauds, and all forms of illegality that an individual potentially can commit. In other words, in a non-democracy the principle of the presumption of innocence is not granted to individuals. In spite of the rhetoric and even in spite of the overall feeling that political and social institutions are democratic, unfortunately in Brazil the concept of citizenship does not include the presumption of innocence. Such a principle has been a privilege granted only to those who in fact should be treated as suspects, i. e. to those who are summoned by the Courts to explain some strong evidences of wrongdoings. Recently a prestigious university from the U.K. asked me to apply a final exam to a Brazilian student who had accomplished all the requirements of the course but had to come back to Brazil before the period of the final exams. The fact that I was a regular professor of a university officially recognized by the Brazilian educational authorities was enough to consider me entitled to understand the importance of the exam, and perfectly able to apply it according to their rules. Such a procedure sounds quite shocking when we compare it with the exams and tests applied in public tenders for the many positions of the public service in Brazil. In such exams every candidate is treated as a fraudster and his pens, clothes, and other belongings are inspected more carefully than in an airport just after a terrorist attack.
Perhaps judges and authorities should review their attitudes toward citizens as well as toward those who are facing formal judicial processes. Regular citizens should not be treated as suspects and those who are standing trials for fraud or for other wrongdoings should be treated as suspects and not with great benevolence under the principle of the presumption of innocence. As a matter of fact in a free and democratic society citizens are presumed innocents while those who are proved guilty are punished severely, and there is no constraint to treat as suspects those who are facing trials before the Justice. The history of the great democracies shows that prevention is for dictatorships and authoritarian regimes, and presumption of innocence is for free and democratic societies. In free societies prevention is not assured by considering their citizens as suspects but by punishment of those who broke the law. In free societies punishment has to be severe, not to serve as example to others but primarily because breaking the law means also breaking the confidence and putting at risk liberties to which the presumption of innocence is an essential institution. Unfortunately such an equation is hardly understood in a society like Brazil where crimes and illegalities – even when committed repeatedly – are seen as innocent and unwilling mistakes, and punishment is view not as justice but as cruelty.