The pretrial detention in the Democratic State and the decision in RHC Nº 131.867-PA-STJ

Abstract

The article analyzes the arguments used by the Superior Court of Justice of Brazil in the ordinary appeal of Habeas Corpus nº 131.867-PA about pretrial detention and makes a correlation with the principles that ensure the Democratic State. In the Middle Ages, based on the inquisitorial criminal process, prison was started without prior formation of guilt - a rule during the evidentiary stage. In the current accusatory system, the status libertatis of the individual is the basic principle of the Democratic State, that is, the decree of incidental pretial detention occurs from the presumption of innocence and the arrest is decreed in ultima ratio. The judge examines the proportionality between preventive detention and the fact, verifying the presence of the binomial suitability and need for precautionary custody. The decision RHC 131.867-PA reflects a fundamental moment for the Brazilian criminal procedure, once it confirms the fundamental guarantees of the individual, while imposing, for the decree of precautionary custody, the observance of the principle of presumption of innocence, the presence of the periculum libertatis and fumus commissi delicti, as well as that the motivation of any decree be based on absolutely concrete situations that make it essential to grant the exceptional precautionary measure.