Presumption of innocence and the process of administrative improbity

Abstract

This article examines the application of the principle of the presumption of innocence in judicial proceedings concerning acts of administrative improbity. The study begins by identifying a characteristic feature of constitutions enacted after the second half of the twentieth century, namely the incorporation, within their declarations of rights, of fundamental criminal law guarantees of both substantive and procedural nature. It also addresses the recognition of the presumption of innocence as a fundamental right in various declarations of rights and legal systems, including the Brazilian (Article 5, LVII, of the Federal Constitution). This principle is closely related to the assessment of facts and evidence and has direct implications on the procedural treatment of the defendant. The article further argues that the presumption of innocence unquestionably constitutes a guiding principle of the State’s punitive power in general, extending to administrative sanctioning law. Its effectiveness operates in both substantive and procedural dimensions, with constitutional case law playing a decisive role in its development. In conclusion, the study affirms the applicability of the presumption of innocence in judicial proceedings for the determination of administrative improbity. This entails relevant consequences, particularly regarding the production of proof, the adoption of interim measures, and the treatment of the defendant throughout the proceedings. The analysis is supported by both domestic and foreign doctrinal and case law sources.