O impedimento de ingresso previsto no inciso IX do artigo 45 da lei federal nº 13.445, de 24 de maio de 2017 e suas alterações e o direito fundamental à presunção de inocência: um legado de criminalização do não nacional?

Abstract

Item LVII of article 5 of the Federal Constitution recognizes that all are equal before the law, without distinction of any kind, guaranteeing Brazilians and foreigners residing in the country the right to freedom and, furthermore, that no one will be considered guilty until the final and unappealable conviction of a criminal sentence: this is the fundamental right to the presumption of innocence. The general objective of this work is to problematize the prediction of this guarantee in relation to non-nationals in transit, within the scope of item IX of article 45 of Federal Law No.” and identification with a possible legacy of criminalization. To this end, the operational concepts used in the research are approached, namely the principled conceptions of State and Law that underlie the discussion of the presented problem, taken from the Guarantee Theory, about the universality of the law, based on the dignity of the human person; as well as in the conception of law as a provisional result of struggles for access to goods. Still, the entry into the Migration Policy is studied, including the historical recovery as an important vector for the analysis of the legacy that is intended to be studied, with the description of the context from the Police State to the Democratic State of Law. Finally, the fundamental right to the presumption of innocence is analyzed, with regard to the content, origin and jurisprudential interpretation and, finally, the applicability of the methodology used: the analysis of the discourse in the light of operational concepts and the history of migration policy to offer the answer to the problem presented, which is whether the prediction of impediment to entry highlighted represents a legacy of criminalization of non-nationals. It is concluded that non-nationals in transit are also guaranteed the fundamental right to the presumption of innocence, based on the principle of the prevalence of human rights that governs international relations, as well as the foundation of human dignity and the concept of global citizenship , with the provision of impeding the entry of non-nationals for reasons linked to the commission of crimes for which the final and unappealable conviction of a criminal conviction that violates the fundamental right to the presumption of innocence is not required, and is the result of a sovereignist conception that privileges the internal order to the detriment of content control that characterize the Constitutional State of Law for the Guarantee Theory.