Banalização da prisão preventiva: ofensa ao princípio da presunção da inocência

Abstract

Presumption of innocence is a fundamental right of the human being and, as it is, has constitutional prevision. However, this principle has not been properly observed in Brazilian Law, reason why nowadays a complete trivialization of preventive detention is noticed. This trivialization is a consequence of several factors, such as the public outcry for public safety and the sensationalism of the news published by the media about crime and the criminal one. As a result, there has been built a truly vicious circle, in which accused are arrested without any precautionary ground – and, therefore, characterizing an unconstitutional early execution of penalty - and new crimes are committed exactly because of this early stigmatization of inmate who is impregnated on the accused. So, seeking to correct this context, the Law 12.403/2011 was enacted, which inserted in the Code of Criminal Procedure personal protective measures various of prison, with the effect of modifying the trivialization of preventive detention, given that these are characterized as intermediate steps between the total grant and the total deprivation of the liberty of the accused. Therefore, the present work introduce the current socio-legal context in which the new legal regimen of preventive detention was built, as well as the characteristics of this injunction. After, the principle of the presumption of innocence and the reasons why it should be observed are explained. Finally, the consequences of trivialization of preventive detention are demonstrated in conjunction with how diverse personal precautionary measures of imprisonment may be used to reverse this situation.