Prisão cautelar e o princípio da proporcionalidade

• Autor(a) principal: Santos, Ivanaldo Bezerra Ferreira dos
• Data de Publicação: 2021
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/24515
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO; Prisão preventiva; Proporcionalidade (Direito); Medidas cautelares; Presunção de inocência; Preventive detention; Proportionality in law; Provisional remedies; Presumption of innocence

Admitted as constitutionally feasible the imposition of restrictive precautionary measures or deprivation of liberty in the scope of ensuring or preserving the useful result of the Criminal Procedure, emerges the Principle of Proportionality as a valuable criterion in order to demarcate the maximum limits of legitimate intervention within the scope of the fundamental right of liberty of that presumed Innocent. Despite the lawful intervention in the sphere of freedom of the citizen, provided that constitutionally provided and standardized in the Brazilian Code of Criminal Procedure its hypotheses of incidence, however, only seems compatible with the constitutional values of human dignity, presumption of innocence and proportionality when evidenced by its exceptionality, provided that no other alternative precautionary measure proves to be efficiently capable of promoting the useful outcome of the process with the least possible sacrifice to the fundamental right of freedom. Thus, once the apparent antagonism between the fundamental right of freedom and the necessary protection of the effectiveness of the process is verified, the principle of proportionality is convened to indicate, through the technique of weighting and balancing values, the viable way for its solution. Only the appropriate and necessary intervention, guided by proportionality in the strict sense, based on a value criterion in the selection of means and ends, seems to be dedicated to compatible with the constitutional principle of the presumption of innocence. Based on these assumptions, it is estimated that the principle of proportionality is presented as a criterion of weighting between constitutionally valid medium and purposes in order to promote the useful result of the criminal process without imposing unnecessary mistreatment of the fundamental right of freedom, avoiding excesses, abuses and even their emptying. The present investigation is precisely aimed at demonstrating the vertical compatibility between imprisonment in the course of criminal prosecution and the fundamental right of freedom of the presumed innocent, provided that it is subject to the exact limits outlined by the constitutional principle of proportionality, to the extent that it is intended to comply with essentially precautionary scopes linked to the effectiveness of the useful result of the Criminal Procedure