O dever de revisão nonagesimal das prisões preventivas e a (in)observância do dispositivo processual penal pelo STF

Abstract

The present work proposes to discuss the interpretation of the provisions set forth in the sole paragraph of article 316 of the Code of Criminal Procedure, a matter submitted to the Plenary of the Constitutional Court, on October 15th, 2020. On this occasion, the Federal Supreme Court decided to relativization of the 90-day deadline for reviewing the grounds of pre-trial detention and expanded the interpretative scope of the aforementioned provision. The problem of this study, then, is linked to the mistaken understanding adopted by the STF and, consequently, to the non-observance of the criminal procedural institute introduced by the “Anti-Crime Package”. In order to reach the central objective of the discussion, we sought to analyze the paradigm case that gave rise to the discussion before the STF and, above all, the hermeneutical foundations used by the Supreme Court. In this sense, the inductive and interpretative-judicial method was used, together with the technical procedure of bibliographical, jurisprudential and legislative review. As a result of the investigation, the contra legem character and the final incompatibility of the thesis established by the Supreme Court were verified, with the clear violation of constitutional principles and rights.