Inelegibilidades, presunção de inocência e a Lei da “Ficha Limpa”

• Autor(a) principal: Nóbrega, José Tadeu de Barros
• Data de Publicação: 2017
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://tede2.pucsp.br/handle/handle/20023
• topic: Direito Constitucional; Direito Eleitoral; Democracia; Brasil - [Lei complementar n. 135, de 4 de junho de 2010]; Constitutional Law; Electoral Law; Democracy; CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO

The “Lei da Ficha Limpa” Act created restrictions to the passive capacity to suffrage. The theory of inelegibilities sets the context of berating the right to be voted. The “Lei da Ficha Limpa” Act created new situations that generate inelegibility among which are those resulting from non res iudicata. The effects of a conviction non res iudicata had lead voices to argue that it would violate the principle of presumption of innocence. The principle of presumption of innocence was enshrined in the Brazilian Constitution of 1988 in article 5, LVII, as presumption of non-culpability. Presumption of innocence or non-culpability is also provided in international declarations and treaties, such as Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, American Convention on Human Rights and Treaty of Rome. Admittedly, the presumption of innocence has a radiating character and it is applicable in other spheres beyond Criminal Law, including the Electoral Law, as it appears in the cause ADPF 144. However, the presumption of innocence is not absolute, and it is possible to be mitigated. The Supremo Tribunal Federal (Brazilian Supreme Court) – after a period of prevalence of opposing side – has turned to previous positioning for the possibility of provisional execution of sentence in cases of convictions confirmed by the Court, although there is pending appeal. The Lei da Ficha Limpa Actwas subject to judgment by ADI 4578 and ADCs 29 and 30, including as to the alleged violation of the principle of presumption of innocence. Even before the change of understanding regarding the execution of the sentence the Supremo Tribunal Federal decided, by majority vote, for the constitutionality of the Lei da Ficha Limpa law. The Lei da Ficha Limpa law has negative points, as it may hinder the democratic exercise of voting by limiting candidacies. Nevertheless, when it is recognized that the presumption of innocence is not absolute, it is not unconstitutional