A audiência de custódia no Brasil como mecanismo de efetividade dos direitos humanos no processo penal.

Abstract

Since the democratization process, Brazil ratified in 1992 the Pact of San José da Costa Rica and the International Covenant on Civil and Political Rights, which include provisions related to the institution of the custody hearing. It states that every prisoner should be taken without delay to a judicial authority, which should analyze the legality and necessity of the arrest. This institute was regulated only in 2015 by Resolution 213 of the CNJ and aims to curb the excesses committed by state arbitrariness, which consequently lead to the violation of numerous fundamental rights. This paper aims to present the Custody Hearing and its implementation in the Brazilian criminal procedure, highlighting especially its contribution to the protection of human rights. Furthermore, this paper had as specific objectives: to study the origin, implementation and application of the custody hearing in the Brazilian criminal procedure; to examine the practical effectiveness of such institute based on jurisprudential analysis; and to demonstrate that it is an instrument that makes the criminal prosecution more humane and related to the observance of human rights. Therefore, the following problematic issue has emerged: is the custody hearing, in fact, an effective mechanism for the observance of human rights in the context of criminal proceedings in Brazil? Does it efficiently contribute to the defense of the individual's minimum fundamental rights when facing the reality of the Brazilian criminal procedure? The hypothesis presented consists in the ideal that the legitimate implementation of the custody hearing, by increasingly improving it, will serve as a mechanism to guarantee human rights in the context of Brazilian criminal procedure. While it is an instrument capable of preventing abuse and mistreatment and reducing the number of temporary detainees. The procedural method used was the historical evolutionary method aided by the statistical method, and as a research technique the bibliographical study, through a deductive approach, referring the study to a historical contextualization of human rights in the context of criminal justice in Brazil, addressing the normative influence of international human rights treaties, the investigation of the compatibility of this institute against the legal and material reality of Brazilian criminal procedural law, in addition to an analysis of the normative provision of the custody hearing, the theoretical and normative premises of fundamental rights and human rights, legal nature, principles, reasons that militate for and against the status libertatis, negative and positive aspects, results, focusing on the main discussions inherent to the theme. Finally, it was possible to deduce through a deep reflection and analysis of statistical data and jurisprudence that, despite the difficulties encountered, this is a brilliant instrument to combat abusive practices, illegal imprisonment and the consequent reduction of prison overpopulation, highlighting its mportant role in guaranteeing human rights.