A IMPOSSIBILIDADE DE CONVERSÃO DA PRISÃO EM FLAGRANTE EM PREVENTIVA DIANTE DO REQUERIMENTO DE MEDIDAS CAUTELARES DIVERSAS PELO MINISTÉRIO PÚBLICO

Abstract

This study aims to analyze the role of the judge in the conversion of an arrest in flagrante delicto during custody hearings, as provided for in Article 310, section II, of the Brazilian Code of Criminal Procedure (CPP). The focus lies particularly on situations where the Public Prosecutor requests the imposition of an alternative precautionary measure, yet the judge converts the arrest into preventive detention. This issue has been the subject of divergent interpretations within the Superior Court of Justice (STJ), centered on the argument that section II of Article 310 fails to clearly establish whether a party’s request is a prerequisite for such judicial action. Within this context, the analysis is grounded in two key premises: the accusatorial nature of the Brazilian procedural system and the incompatibility of the general precautionary power with criminal proceedings. The study also revisits relevant legislative developments concerning the topic. In its final section, the paper explores the divergence between the Fifth and Sixth Panels of the STJ, connecting the legal reasoning in the justices' votes to the doctrinal concepts examined throughout the work. The methodology employed is bibliographic and documentary in nature, following a deductive approach. Ultimately, the study seeks to underscore the urgent need for a consistent and unequivocal jurisprudential stance that aligns with the procedural model adopted in Brazil—or, alternatively, for legislative reform that clearly delineates the scope of judicial action ex officio.