REAVALIAÇÃO PERIÓDICA DA PRISÃO PREVENTIVA: ANÁLISE DO PRAZO DE 90 (NOVENTA) DIAS DO PARÁGRAFO ÚNICO DO ARTIGO 316 DO CÓDIGO DE PROCESSO PENAL

Abstract

The Law No. 13.964/2019, better known as the "Anti-crime Law" or "Anti-crime Package", among countless legislative changes in Brazilian Procedural Law, introduced a single paragraph to article 316 of the Criminal Procedure’s Code, which established the need for the Judiciary, ex officio, through reasoned decision, to reassess the maintenance of preventive custody each ninety (90) days, under penalty of becoming illegal. In this context, this monograph with overall objective to verify the legal implications caused by failure to review the deadline held in the new law’s paragaph. In order to achieve this, it was sought initially to conceptualize the pre-trial detention, as a type of preventive detention, under the Article 311 of the Criminal Procedure’s Code, as well as describe the legal assumptions and hypotheses of admissibility for its decree. It also intended to analyze, through doctrine and jurisprudence, the term of preventive custody, given the absence of legal provision, as well as to examine the innovations by the Anti-Crime Package. In addition, the decisions handed down by the Superior Court of Justice and the Federal Supreme Court were scrutinized with regard to the court with jurisdiction to review the maintenance of the preventive custody order within ninety days, as well as the legal consequences of the judicial authority's failure to observe the aforementioned deadline. In order to achieve the objectives, the research used the descriptive method, the collection of bibliographic and documental data, and the case study. Therefore, it was concluded that the understanding prevails in Brazilian jurisprudence that the period of ninety days, provided for in the sole paragraph of Article 316 of the Criminal Procedure’s Code, does not have a peremptory nature, so that the mere elapse of the 90 days period without a review of the measure will not, by itself, lead to the illegality of the arrest, which was found to be a clear affront to the constitutional guarantees of the presumption of innocence and human dignity.