A prisão domiciliar sob o viés do direito fundamental à convivência familiar e comunitária do menor: uma releitura a partir da jurisprudência gaúcha

Abstract

Family life has positive effects on the full development of the child, especially in the first six years of life, being a fundamental right of the child and the young class. In Brazil, the Doctrine of Integral and Absolute Protection predominates for children, placing them as a priority in the formulation of public policies. In this sense, the Early Childhood Statute was implemented in the country, with guidelines for the realization of the rights of children and adolescents. Among the novelties brought by this statute is the possibility of granting house arrest to the arrested, who is pregnant regardless of the month of gestation, or who is the mother of a child up to twelve years of age. In this sense, the Early Childhood Statute was implemented in the country, with guidelines for the realization of the rights of children and adolescents. Among the novelties brought by the above mentioned law is the possibility of granting house arrest to the prey, pregnant, regardless of the gestation month or mother of a child up to the age of twelve. Presumption of innocence and strengthening of family ties are prioritized. However, it is true that legal permission to convert a constrictive measure of freedom from home detention is not a direct subjective of the accused mother and in this case all legal facts and circumstances must be analyzed. Before this judicial power, priority is given to the study of the decision-making power of the Judiciary, which must be guided by the integrality of the legal system. Thus, the judge must dissociate himself from his prejudices and convictions, so that the autonomy of law and democracy prevails. Therefore, the essentiality of the present study, in order to establish an overview of the jurisprudential panorama of the Court of Justice of the State of Rio Grande do Sul, regarding the granting of house arrest to the motherprivate, Family coexistence and at community level. In this context, one has as a problem of the present research: to what extent the granting of house arrest has fulfilled the requirements established in the legislation and, consequently, contributed to the principle of family and community coexistence of the minor. The inductive method of approach and the methods of monographic procedure or case study are used and, to better elucidate the theme, the work is divided into three parts: the first allows a general approach to house arrest. In the sequence, the right to family life is analyzed, and finally, the judicial decisions of the Gaucho Court of Justice related to maternity in the prison are studied. The results obtained indicated that the granting of house arrest, through the analysis of objective and subjective criteria, is the granting of the request subject to the particularities of each case. In addition, the Gaucho Tribunal contributes partially to the realization of the right to family life.