A (DES)NECESSIDADE DE REVISÃO DA PRISÃO PREVENTIVA A CADA 90 DIAS: A CRIAÇÃO DE EMBARAÇOS NA APLICAÇÃO DE NORMAS COM CONTEÚDO GARANTISTA

Abstract

The present essay has as its theme the analysis of the conduct of the Superior Courts in the application of the sole paragraph of article 316 of the Code of Criminal Procedure, inserted by Law No. 13,964 of 2019. Although it does not set a time limit for the maintenance of preventive detentions, the provision established a time parameter for the verification of possible excess of term, one of the greatest deficiencies of the Brazilian precautionary system today. However, despite expressly determining the mandatory review of the measure every 90 days, under penalty of making the arrest illegal, the judges have understood that the non-compliance with the rule does not give the prisoner the right to be automatically released. It so happens that the aforementioned thesis is opposed to the wording of the novel provision, which establishes the condition of illegal imprisonment in preventive prison that needs reassessment, generating the obligation to relax it, as determined by the Federal Constitution. In this case, there is an apparent effort by the Judiciary, especially the STF and STJ, to block the application of an essentially guaranteeing rule. Through the use of the inductive method, this monograph examines the motivations and purposes of the main jurisprudence on the subject, as well as their non-conformity with the safeguard of a broad system of fundamental guarantees, using qualitative research to do so. It is concluded that the doctrine of “no term” in preventive detention contributes to the deprivation of the enjoyment of guarantees which the individual has, requiring the development of legislation capable of guaranteeing an effectively accusatory criminal procedural system. It is imperative to recognize the deficiency in the implementation of the construction of a Criminal Procedure in Brazil that serves as an instrument for the realization of fundamental rights, whether in the judiciary or in the legislative field, which alternate between them the protagonism in the retreat of the defense of a guarantee system, this being the problem presented in this research.