Análise acerca da substituição da prisão preventiva pela prisão domiciliar nos casos de gestantes e mães de menores como forma de efetivar o princípio da dignidade da pessoa humana.

Abstract

The present work analyse the replacement of pretrial detention by the house arrest of women prisoners aiming to implement effectively the principle of the dignity of the human person, as well as to ease the problems experienced within the prison. It has as general objective the analysis of the replacement of the preventive detention by the house arrest like mechanism of protection to the postulate of the dignity of the human person and the principle of the best interest of the child and the teenager; and, as specific objectives the research presents: examine the various precautionary measures of the prison foreseen by the Code of Criminal Procedure; study the question of the exceptionality of precautionary prisons; address the principle of the dignity of the human person and its impact on criminal proceedings; and, to verify that the replacement of pre-trial detention by house arrest is a mechanism to alleviate the problems experienced by women in prison. The problem in which the work aims to solve lies in the fact that since the State constantly violates fundamental rights and guarantees in prison, would such a substitution not minimize such violations? In order to achieve the aforementioned objectives, the deductive method was used, through bibliographical and virtual research, making use of jurisprudence and doctrines in the area of Criminal Procedure. Also using scientific articles and magazines that deal with the subject. The work presented here is justified and proves relevant insofar as it is necessary to address the constant violations of constitutional rights and guarantees that women prisoners suffer in the prison environment, affecting their dependents who lack adequate environment or the maternal presence for their full development, causing the sentence to pass from the person who committed the criminal offense. During the accomplishment of this work it was verified that with the advent of the various precautionary measures of the prison made this subsidiary and exceptional, causing the judge to prioritize for the application of such measures and only in these cases to define it is not enough to order the prudential segregation. Moreover, the present work addresses the historical evolution of the principle of the dignity of the human person and its consequences in criminal proceedings, especially in the context of criminal enforcement. The monographic research turned its gaze to the reality of the Brazilian prison system and its complete disruption to include pregnant women or even mothers who want to cherish family coexistence. It was clear that substitution is more than necessary, considering the importance that a family base has for the full development of a child, however it is observed throughout the research that the legal requirements must be fulfilled and that it must be taken in each case and was analyzed in the course of the study Habeas Corpus No. 143.641 of the STF taken as a parameter for what was defended in the course of this investigation. At the end of the study it was verified the total applicability of the substitution of preventive custody by the home, taking into account the bankruptcy of the Brazilian prison system and the best interest of the child or teenager.