Prisão preventiva: análise da sua constitucionalidade sob a perspectiva do princípio da presunção de inocência

Abstract

The present work seeks to analyze the constitutionality of the institute of preventive detention when analyzed in accordance with the basic principle of the Brazilian criminal procedure: the principle of presumption of innocence. Therefore, it analyzes the importance of this principle in the Democratic State of Law, as well as its application in the Criminal Procedure. Subsequently, the concepts and main information on prisons and precautionary measures in general will be delineated. In addition, the requirements and the hypothesis of pretrial detention, as well as the models of this type of provisional incarceration in accordance with Law 12,343 / 2011, will be stated. After analyzing the two institutes, it is apparent that predominantly jurisprudence and doctrine have the opinion of the possibility of the precautionary anticipation of the prison, if duly motivated, strictly necessary, and in accordance with the Code of Criminal Procedure. Accordingly, the application of the principle of proportionality by examining its three sub-principles, namely, adequacy, necessity and proportionality in the strict sense, has proved to be the most effective way of employing pre-trial detention, so that it can be used only exceptionally when measures are not sufficient.