O paradoxo existente no momento de aplicação do instituto da liberdade provisória nos crimes afiançáveis e inafiançáveis

Abstract

The legal system constantly suffers changes in its content, in view of innumerable factors that govern society. It is certain that any modification that is sought is to improve something already existing. However, it is necessary to emphasize that the target is not always reached. With the appearance of Law 12,403 of May 4, 2011 was no different. The respective law came as a way not only to change several institutes present in the scope of the criminal process, but also to improve each of them in a way that is more and more suited to the reality experienced at the time. However, as observed in the legislation, an incongruence of great relevance was generated, which, consequently, generates an immediate need to be discussed. Such incongruity lies in the granting of provisional liberty for the non-bailable crimes and the unspeakable crimes. It is observed that for non-enforceable crimes that, in theory, are considered more burdensome compared to the others, the granting of provisional freedom - if legal requirements are met - will be given "free", while less severe crimes, for granting , bail. Thus, the present study intends to verify if the commission of an unapproachable crime may constitute an advantage at the moment of application of the institute of provisional freedom, in the absence of the necessary requirements for the conversion of the prison in flagrante into custody.