Prisão preventiva: a (in) consistência do fundamento relativo à ordem pública e a possível afronta ao princípio da presunção de inocência

Abstract

The present work seeks to analyze the expression "public order" as a legal hypothesis for the enactment of preventive detention, with the purpose of assessing its consistency with the principle of presumption of innocence. In order to reach this scope, a brief explanation was made of the precautionary prisons, with an emphasis on pre-trial detention, addressing the principles that underpin its application. With these considerations in mind, the main problem, related to public order, is taken into account, in view of the vagueness of the expression, which allows a wide interpretive margin, which may give rise to the inappropriate use of this precautionary measure. Given the porosity of the term "public order", the application of this hypothesis of pre-trial detention is practically malleable and the judge's discretion practically unrestricted. In some cases, especially those with high media repercussions, this allows the magistrate to yield to social outcry for a public order that is not even threatened. It is therefore sought to demonstrate the need for caution in the enactment of pre-trial detention on the basis of public order, so that constitutional principles that validate the entire Criminal Procedure Law, such as the presumption of innocence, are not unnecessarily mitigated. At the very least, it is necessary to make the hypothesis of a detention order more objective in order to guarantee the security of the defendant, thus limiting the jurisdictional power.