BATISTA, T. C.; http://lattes.cnpq.br/5623339307785281; BATISTA, Thaís Claudino.
Résumé:
The monographic study aimed to analyze the institute of precautionary regression prison
regime on deprivation's liberty execution, front of doctrinal and jurisprudential differences
that exist about the subject. Despite this institute is not mentioned in the Prison Law, large
part of doctrine and jurisprudence understand to be fully possible to apply it, founded,
basically, on the general power of caution designed the magistrate. This view has created
quite a stir in the existing legal system, since the Penal Execution Law states that to be
effective the regression's prison regime is indispensable do the convict's previous oral
testimony. So, the precautionary decree of the regime flagrantly violates the principles of
legality, the contradictory and full defense. Then, this paper proposes to demonstrate, based
on doctrinal and jurisprudential lessons, the positions that exist about this institute,
highlighting their main arguments. For this, to reach the summit of research, it was necessary
to structure it in three chapters. First of all, we started with a broader premise, highlighting the
penalty’s historical origins to reach the current custodial sentence. Second, entered the
process of individualization of custodial sentence, emphasizing their legal and enforceable
phases, when we did a detailed study on the penalty compliance regimes, progression and
regression regime, analyzing each of their hypotheses. Finally, in the third chapter, as logical
consequence of what was discussed in the previous chapter, was developed to study the
precautionary regression prison regime, emphasizing the two existing positions as well as the
consequences resulting from its application. To reach the goal set for this work, the deductive
and exegetical-legal methods were used, employee by techniques of bibliographical and
documentary-jurisprudential research, with subsidies in the national doctrine, research papers
and positions of courts. It was verified, therefore, the importance of this paper, since the
decision orders the prison regime of precautionary regression shows is totally arbitrary and
unconstitutional, because the failure to comply with the principle of contradiction, in addition
to violating the provisions of the Penal Execution Law and in the Constitution, is an obvious
throwback to the rights and guarantees previously conquered, inadmissible under the
Democratic State of Law.