As nuances da prisão cautelar frente ao princípio da presunção de inocência no ordenamento jurídico brasileiro.

Abstract

The present research has as general objective to deal with the correlation of the precautionary prison with respect to the constitutional principle of the presumption of innocence in the Brazilian legal order, regarding the application of one to the detriment of the other, that is, solving the problem of determining what will happen to overlap the other within the concrete situation, since time will be the principle of presumption of innocence, now it will be the precautionary prison. The method of approach used will be hypothetic-deductive, analyzing the origin and evolution of such institute within the concrete situations and in what form such decisions taken can be the most just possible. In this way, it will be demonstrated through the method of historical- evolutionary procedure that the principle of proportionality must be applied with the aid of the technique of weighing constitutional values, as some bibliographical research and jurisprudence point out. The legal argument used by the judge will be the validator of the decisions taken on the basis of the fumus commissi delicti and periculum libertatis, as will be analyzed through the technique of bibliographic research. It will still be approached as the principle of presumption of innocence gained this importance within the legal order of the country in the historical process that began with the French Revolution and was consolidated with the decree of the Democratic State of Law. Then, what will become prison will be conceptualized along with a brief history of its emergence, dealing with what the types of precautionary prisons provided for in the Code of Criminal Procedure as well as some changes that have suffered over time. Finally, it will be shown how to resolve possible conflicts between the constitutional principle and the penal system and some Judicial positions on this issue, in an attempt to clarify how to proceed in such cases.