According to the constitutional precepts, a person must be considered innocent until his or her conviction, that is, until the final sentence of his sentence is passed – so when the decision can no longer be appealed. As a rule, a person could not be arrested before this time, however, there are three types of arrest that can exceptionally happen to the rule: arrest in the act, temporary arrest and custody . And it is about pre-trial detention that the we will explain to you.
WHAT IS PRE-TRIAL DETENTION?
Pretrial detention is used as an instrument of the judge in a police investigation or in criminal proceedings , that is, it is a procedural instrument . It can be used before the conviction of the defendant in criminal or criminal action and even be ordered by the judge. In both cases, the arrest must follow the legal requirements to be applied, regulated by Article 312 of the Code of Criminal Procedure.
HOW CAN IT BE APPLIED?
To be applied in a police investigation, it must be requested by the Public Prosecutor’s Office or by representation of police authority. When requested within a criminal criminal action, it may be requested by the Public Prosecution Service. When the criminal action is from the private area, as in cases of crimes against honor, the preventive detention may also be requested by the plaintiff – who is the one who rendered the complaint for criminal action, the “offended.”
Preventive detention may be ordered, according to article 313 of the Code of Criminal Procedure, in the case of:
- unreliable crimes – those for which there is no possibility of payment of bail or provisional release, ie the accused must remain imprisoned until his or her trial. The following are considered inviolable crimes in Brazil (Constitution, article 5, items XLIII and XLIV): racism, torture, drug trafficking, terrorism, action by armed groups against constitutional order and the rule of law, heinous crimes – types of crimes crimes considered most repugnant to the State, in which there is clear cruelty, such as homicide, rape, robbery, among others ;
- in bailable crimes – when the evidence against the defendant are sufficient for this or when there are doubts about their identity and there are not enough elements to clear it;
- in intentional crimes. Although they can be prosecuted, pre-trial detention can be applied when the defendant has been convicted of a crime of the same nature, in a final judgment – that is, of which there is no more remedy;
- if the crime involves domestic and family violence against the woman, child, adolescent, elderly, sick person or person with disabilities, to ensure the implementation of urgent protective measures.
Pretrial detention, as required, may be revoked if in the course of the proceedings the judge finds that it is no longer necessary or may be enacted more than once if there are reasons to do so. The conditions for pre-trial detention should be:
1. Guarantee public order and the economic order – in short, prevent the defendant, loose, continue to commit crimes against these orders, causing irreversible damage to society;
2. Convenience of criminal instruction – prevent the defendant from acting in a way that disrupts the process or investigation, such as threatening potential witnesses, destroying evidence, etc .;
3. Ensure application of criminal law – this requirement is what most has to do with the very name of the prison, since it is the prevention of the defendant not running away or that Justice is in any way unable to apply the sentence that was given to him.
IS THERE AN APPEAL FOR PRE-TRIAL DETENTION?
There is no exclusive appeal against the decision ordering pre-trial detention. The possible way out to avoid it is by asking for a Habeas Corpus . Habeas corpus is an action foreseen in the Constitution , in this case inserted in a criminal procedure. It is a measure aimed at protecting a person from the restriction of his right to come and go or who asks to stop the violence or coercion that may be suffering.
The defendant’s lawyer may request the revocation of the preventive detention in the case file, attaching the documentation he deems necessary for his argument that pre-trial detention should not happen. In the petition, the professional also usually refers to case-law – similar cases in which the judge had a decision favorable to him – in order to support his thesis that pre-trial detention would be irregular.
WHAT SHOULD EVIDENCE BE FOR THE ARREST TO TAKE PLACE?
Two principles necessary for the arrest to be carried out: material proof that gives certainty about the existence of the crime and its authorship . Although there is no need for absolute proof of the commission of the offense , the evidence must support the authorship of the crime and the likelihood of the person being indicted for it. There is, however, the idea that the same certainty for pre-trial detention as that for condemnation is not necessary – the rule of “if in doubt, acquittal” in pre-trial detention as well as condemnation is not so fervently valid. However, there are some excesses reported by the legal area. In addition, some interpretations of the legislation governing such prisons are considered arbitrary.
WHAT ARE THE REASONS WHY PRE-TRIAL DETENTION CAN BE CONSIDERED ABUSIVE?
There are theses that support the appeal that prisons can have, especially by civil society. Imagine the scenario: the president of the City Council of your city is guilty of criminal prosecution and there is a possibility that he may be arrested preventively. It is quite probable that there are favorable movements for this to happen, because of the sense that this will do justice.
However, there are cases where, because of the social outcry calling for an action by Justice or by pressing a judge to act, what decisions are made in the wrong way. This also occurs in the case of probation , in which there are not always the evidence or basic evidence necessary for it to occur.
Pretrial detention should be an exceptional measure, many lawyers say throughout the country. This is the most widespread idea among legal operators. In many cases, however, it ends up being trivialized by justice, in the sense of being used without the sieves, criteria and premises necessary for it to occur.
In these cases, what can be called judicial activism , which is the idea of intense action, of greater influence, of Justice in the concretization and defense of constitutional values. This sometimes occurs in the defense of fundamental constitutional rights , such as the right of a person to receive medicine from the SUS, or a child to go to school. More than that, it is the true role of courts in deciding on facts and forming precedents of jurisprudence – that is, giving a new interpretation to a case. In certain situations, such decisions are anticipated by the law itself. When it comes to preventive prisons, establishing jurisprudence can means to go over the right of presumption of innocence on which our Constitution is based.