O direito à liberdade e a sua mitigação: uma abordagem acerca da aplicação do principio da presunção de inocência

Abstract

The present work looks for to establish a discussion around the current stigma that he/she/it has been presenting in some judicial decisions in what he/she refers to the right of freedom. It is known that, in if being about the constitutional warranty of the right of to go and to come of the citizen, this was reached by the current political and juridical conjuncture of the Country by means of hard discussions and fights that the history and the largest witness. It repairs at Brazil Empire's time the challenge of moving away of our juridical ordenamento the illustration of the obligatory maintenance of the prison without feather, that is nothing else than the impossibility of the prisoner provisorio to get rid of the jail while it awaits the prolacao of a sentence in penal process. It was like this an own conquest of the democratic regimes. Not for other reason the Constitution of the Republic of 1988 determines, in the interruption LXVI of its article 5th, that nobody will be taken to the prison or in her maintained, when the law admits the freedom provisoria, with or without bail. It happens that, perhaps under the domain of a historical amnesia and in an unconstitutional way, our legislator made renascer in our juridical ordenamento the illustration of the obligatory maintenance of the prison without feather, when publishing several legal diplomas that they hindered the concession possibility of the freedom provisoria to the agent, be her with or without bail. Basing on that, some judicial interpretations have been looking for sufragar the understanding that, as form of to give satisfaction to the society and not to give cable to the impunity feeling, the freedom provisoria should only be granted, in cases especialissimos. It is before that conjuncture that the present work, making use of the historical-evolutionary method, and still of the comparative analysis of having judged and interpretations uttered by the doctrine balisada, it looks for to trace a critical abordagem to that current conjuntara, that prays it affects the pilastras of sustentagao of the own Brazilian constitucionalismo.