Vedação da liberdade provisória em face dos crimes hediondos e do tráfico ilícito de entorpecentes: reflexões acerca do direito fundamental à presunção de não culpabilidade e da exigência constitucional de fundamentação das decisões judiciais

Abstract

This thesis aims to investigate on the possibility of provisional release agents arrested in flagrante delicto in the commission of crimes as heinous capitulated or trafficking in narcotics. This is because, according to the predominant position in the Supreme Court, there is a constitutional seal of granting such a boon in these crimes. This fence, according to that court sits in art. 5. XLIII of the Federal Constitution, where it is prescribed for these offenses no bail. So to conclude, the Supreme Court holds that the impossibility of granting bail in these crimes, independent of legal provisions. Thus, Law 11.464/07, which withdrew the provisional release of the list of seals of various benefits to the alleged perpetrators of heinous crimes and treated, he had the power to authorize it, but only one redundancy excised the legal text, since the fence follows the standard maximum hierarchy. The practical result of this understanding is that any accused of such crimes remain incarcerated during the entire process, even for lack of any precautionary reasons. In the face of everything, this research, guided by the critical-methodological approach, which suggests a critical analysis of reality considered, start analyzing the urgent need for the conformation of the proceedings with the body of fundamental rights and guarantees printed in the Constitution. It then addresses the issue through the prism of the constitutionally imposed obligation of reasoned judgments, and the constitutional principle of presumption of not guilty, which should inform every activity persecuti state. We will then outlines a number of considerations about legal positivism and the context of the crisis, especially in view Kelsen, in order to demonstrate the extent to which the position of the STF reflects assumptions specific to this model theoretically overcome. Be discussed also some factors that contributed to the contours of modern legal interpretation, especially in what regards the subject-object relationship in the context of interpretation. Also explained are some ideas to Hart, since that is where Ronald Dworkin part to criticize positivism in general. Next, we introduce some of Dworkin's arguments that make his theory of integrity, which in this work, assumes the status of important theoretical basis, leading, therefore, the analysis of the proposed problem. And he will be dealt with the issue of temporary prisons, demonstrating the forensics has not observed the condition of cautelare the enactment of measures constricting, mortally wounded, thereby, the presumption of not guilty. Finally, from the assumptions outlined in this work, analyze it will be remains an absolute seal, even regarding it as a constitutional office, which subtract from the magistrate's analysis on the need for prison early, becoming, so to be prison provisional rule in the crimes mentioned.