Habeas Corpus: o instrumento de garantia do direito à liberdade de locomoção física

• Autor(a) principal: Marin, Thiago Alcocer
• Data de Publicação: 2013
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/35811
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PUBLICO::DIREITO CONSTITUCIONAL; Constituição Federal de 1988; Direito de locomoção; Habeas corpus; Constitution of 1988; Habeas corpus; Right of locomotion

The majority doctrine states that the writ of habeas corpus appeared in 1215 in English law, although it is known that in Roman law existed the interdictum homine libero exhibendo, which, with its peculiarities, was envisioned, at the time, to protect of any of violence against the people, including against their freedom. In comparative law, habeas corpus appears in most jurisdictions. Some countries, meanwhile, use different ways for the protection of the right of locomotion. Mexico, for example, generally uses the juicio de amparo, which, beyond to this charge, has as its object the control of constitutionality of laws. In Brazil, the habeas corpus first appeared in the Criminal Code of 1830, was regulated by the Code of Criminal Procedure of 1832 and was erected constitutionally with the advent of the Constitution of 1891. However, from its promulgation until the constitutional reform brought by EC n. 1 of 1926, the institute has served to protect not only the right of locomotion, but also the individual liberty considered in lato sensu signification, period that vigoured in the country the Brazilian’s doctrine of habeas corpus, ceaselessly defended by Rui Barbosa. Currently, the HC is foreseen in article 5, item LXVIII, of the Constitution of 1988, where was petrified among the rules of fundamental rights and guarantees, becoming immutable for the Constituent Power Derived. The right to freedom, in turn, materialized in the constitutional principle of legality, outlined in art. 5, item II, of the Magna Carta, which, on the other hand, created an own rule for the right of locomotion, namely, item XV of the same art. 5. Procedurally, habeas corpus is disciplined in patched Code of Criminal Procedure of 1941, and it has as legal nature, according to the dominant understanding, constitutional criminal action. And as we shall see, must it always be managed to sustain the physical liberty of the individual, and may it be repressive or preventive