A (IN)COMPATIBILIDADE DA PRISÃO PREVENTIVA DE OFÍCIO NA LEI MARIA DA PENHA COM O SISTEMA ACUSATÓRIO PÓS-PACOTE ANTICRIME

Abstract

The present monograph analyzes the compatibility of the decree of provisional arrest, provided for in article 20 of Law no 11.340/2006 (Maria da Penha Law), with the accusatory system consolidated in art. 3º-A of the Code of Criminal Procedure and the provisions of article 311 of the same codification. The research seeks to answer if the said prerogative of decreeing the measure without the provocation of the parties still stands before the new accusatory paradigm. For this, the study uses the methodology of bibliographical and documentary research, with application of the deductive method, examining the evolution of criminal procedural systems, the characteristics of precautionary prisons and the normative conflict between laws. The research concluded that the Brazilian criminal procedural system aligns to the accusatory model, in which ex officio preventive detention is incompatible with the new structure, which requires the provocation of the parties for the imposition of precautionary measures, including in cases of domestic violence. The paper argues that, although the Maria da Penha Law is extremely important, the rule that allows the performance of office of the magistrate has been superseded by the new provisions of the Code of Criminal Procedure. The uniformity of understanding by the courts is crucial to avoid legal uncertainty and ensure the prevalence of constitutional principles of due process, impartiality of the judge and individual guarantees, thus harmonizing the protection of women with the rights of the accused.