O exercício do direito ao silêncio e suas implicações negativas no princípio da presunção de inocência no processo penal

Abstract

This study aimed to examine the complex and increasing tension between the exercise of the right to remain silent and its potential negative effects on the principle of presumption of innocence. The research is justified by the theoretical and practical relevance of the topic, as the exercise of this right has, in some cases, contributed to the weakening of the presumption of innocence. A deductive methodology was employed, combining bibliographic and jurisprudential analysis, including the review of doctrines, academic articles, theses, dissertations, and both domestic and international case law. The study explored the presumption of innocence across its three dimensions—rule of treatment, evidentiary rule, and rule of judgment—while also tracing the historical development of these rights. The findings revealed that the exercise of the right to remain silent can, in practical terms, compromise the presumption of innocence, particularly in cases involving Breathalyzer tests, DNA analysis, and the compulsory surrender of objects or documents. The conclusion proposed a lex ferenda aimed at expressly prohibiting any sanction or negative inference arising from the accused’s refusal to produce evidence against themselves, thereby reaffirming the constitutional right to be presumed innocent until a final judgment is rendered