Da (in)aplicabilidade da prisão preventiva face ao descumprimento de medida cautelar alternativa à prisão sob o enfoque da lei n° 12.403/11.

Abstract

The situation of the Brazilian prison system is worrying. In the prison, with no justifying reason, there are an increasing number of convicted prisoners and provisional ones mixed together. And, despite provisional detention is the ultima ratio of the precautionary measures, when it comes to Brazil, such speech is nothing but rhetoric to disguise the rooted prison culture, always stimulated by media. So, the present work has as the main objective the analysis if, in relation to the character of expressed exceptionality of the provisional detention, it seems possible the application of the preventive detention in case of violation of precautionary measure alternative to imprisonment (list of Law 12.403/11), initially imposed on the defendant, and violated by him. The study shows itself of great significance to the legal environment, considering that with the recent approval of this law, it becomes evident the value that assume the precautionary measures alternative to imprisonment, and the lack of clarity about the possibility of application of preventive detention when it is not complied, which generate legal insecurity on the current procedural criminal law. The research focuses, particularly, on the question of primacy of the procedural freedom rather than the preventive detention. For this, are used the hypothetical-deductive method, as a method of approach, the legal exegetical method and evolutive-historical, as methods of procedure, and the indirect documentation by bibliographic research as a research technique. Thus, in the development of the work is performed an analysis of the two streams that divide opinions about the object of research, demonstrating that the first one is in favor of the application of the preventive imprisonment in the case of noncompliance of the precautionary measure alternative to imprisonment, even in the hypothesis of not being present the requirements which authorize this institute, while the second one is contrary to that position, at the time it argues that There must be a systematic interpretation of the provisions that regulate the application of the preventive detention in case of violation of precautionary measure, with the provisions that restrict the imposition of the protective custody. This being done, after doctrinal and jurisprudential analysis remained clear that the second stream has prevailed. Moreover, considering the legal conflict presented, it was concluded that the interpreters of the law should seek harmonious understandings with constitutional norms, excepting that should be excluded extensive interpretations that harm fundamental rights, since the Democratic State of Law is, first of all, warrantor of the most significant legal rights, such as freedom.