Sursis processual e presunção de inocência: o requisito de que o acusado não esteja sendo processado para obter a suspensão condicional do processo ofende o princípio da presunção de inocência?

Abstract

This paper addresses the conflict between the principle of presumption of innocence, as articulated in Article 5, LVII of the Brazilian Federal Constitution (CRFB), and the requirement that the accused must not be undergoing prosecution, a condition for the conditional suspension of the process (“sursis processual”) under Article 89 of Law No. 9,099. The constitutional principle, rooted in human dignity, embodies an ideal of social justice that structures criminal proceedings and imperatively safeguards innocence. Conversely, the procedural institution emerged from a new political-criminal paradigm, introduced through the Special Criminal Courts (“JECrim”), aiming to provide alternatives to custodial sentences. This study, based on critical-exploratory bibliographic research, analyzes doctrinal, jurisprudential, and academic positions to address the central question: Does the requirement imposed by “sursis processual” violate the presumption of innocence? Employing a hypothetico-deductive method, the research hypothesizes that the requirement likely infringes on the principle, as it disregards the treatment mandated by the principle of non-culpability. The findings indicate that the hypothesis is supported: the requirement entails differential treatment prior to sentencing, and the arguments for its constitutionality do not align with the logic of the Constitution and liberal criminal procedure, often relying on generic assertions and displaying conflicts within doctrinal and jurisprudential contexts.