Da inconstitucionalidade da decretação da prisão preventiva como fundamento na garantia da ordem pública

Abstract

The present work aims to carry out an analysis of the unconstitutionality of the decree of preventive detention based on the guarantee of public order. Among the 4 grounds provided for in art. 312 of the Code of Criminal Procedure that enable the enactment of this medida cautelar, taking into account that it is a vague, imprecise and indeterminate term, the foundation guaranteeing public order has become the most used by the Judiciary. Therefore, during the research, some incompatibilities were found between the function of provisional arrest and the way the institute has been used by magistrates. Thus, the research sought to address the different concepts used by magistrates regarding what is public order, to discuss the function of preventive detention and the possibility that it is being used for serving a sentence and not as a medida cautelar, in addition to verifying which forms the decree of preventive detention as a guarantee of public order can affront constitutional and criminal procedural principles. According to all the above, it was possible to verify that there is a conceptual malleability of the institute that is harmful to the accused and, at the end of the research, it was possible to arrive at two different ways to solve this problem. The study, therefore, was based on a theoretical-bibliographic research, which took place through a bibliographic survey supported by renowned authors, using divergent understandings of different scholars, jurisprudential precedents, scientific articles and legal journals.