Devido processo legal: estado de inocência como garantia fundamental no processo administrativo sancionador brasileiro

Abstract

Aiming the effectiveness of the fundamental rights and guarantees, it is necessary to establish instruments that allow their concrete verification. To achieve this goal, the election of the processual via as the only one capable to legitimate the exercise of public prerogatives was a mark on the consolidation of the Modern Estates. On its hand, in a cyclic relation, this last one only validates itself if executed respecting a group of very particular requisites that consubstantiate the so-called due process of law. By an express command, the forced limitation of individual liberties can only be implemented throughout this principle. A special component of this conjunct of guaranties is the necessary recognition of an innate state of innocence of the citizen to whom is imputed the practice of a felony, at least until his culpability results verified through the due process. On the other hand, to allow the effectiveness of the Estate administrative exercise, it has to be recognize that its acts are legitimated, i.e., confirmed by law. Known as presumption of legitimacy of the administrative acts, this attributed sustain the auto execution of the administrators practices. Nevertheless, in many moments, these two institutes are acknowledge in confront: at on side, the necessity to attest the conformance of the administrative act; at the other, the citizen fundamental right to be, until the end of the regular process, to be known as innocent of the imputed practice. Through a bibliographical and documental research, we aim to analyze this situation and extract, by a new perspective of the constitutional precepts applied to the theme, a solution that establishes the due balance between these two institutes, as they are components of the Democratic Estate of Constitutional Law, privileging, necessarily, the maximization of individuals’ rights and guarantees efficacy.