A ABSTRAÇÃO DOS CRITÉRIOS DO ART. 312 DO CPP À LUZ DA TEORIA DO DIREITO PENAL DO INIMIGO

Abstract

Preventive detention is one of the precautionary measures provided for in the Brazilian Code of Criminal Procedure, notably in its Article 312. As such, being an exception to the rule present in a Democratic Rule of Law — the state of liberty and the fundamental rights of individuals — it must be conceived in a fundamentally reasoned manner to ensure its legitimacy in limiting an individual's freedom prior to a final and unappealable conviction. However, the legally prescribed requirements for its issuance are widely recognized by scholars as broad and vague. Thus, this paper analyzes the possibility of decision-making in this area in alignment with enemy criminal law, a theory incompatible with the foundations of a democratic criminal process. Moreover, the practical assessment of the elements of the aforementioned provision will be explored, especially in relation to the preventive detention of those accused of drug trafficking, as typified in Article 33 of Law 11.343/2006. Using the hypothetical-deductive method, a hermeneutic and bibliographic research was conducted. The study concluded that there is a need for better alignment of Article 312 of the Code of Criminal Procedure with constitutional provisions and human rights standards to ensure, in practice, greater efficiency of the state of liberty, a cornerstone of the Democratic Rule of Law.