Preliminary injunction in a “habeas corpus” proceeding

Abstract

Habeas corpus constitutes an instrument for giving effect to constitutional guarantees in criminal and criminal procedural matters, particularly because of its effectiveness and promptness in protecting the right to liberty. The injunction, developed judicially on the model of the writ of mandamus, has a precautionary nature and should be granted when fumus boni iuris and periculum in mora are present, especially where there is a manifest violation of the right to freedom of movement. Legislative omission does not prevent its use, since the immediate application of fundamental rights requires their effective implementation. Its denial, however, requires adequate reasoning, under penalty of judicial arbitrariness and nullity.