Pretrial detention and pretrial release

Abstract

The article examines, in light of the 1988 Federal Constitution and the due process of law clause, the institutions of pretrial detention and provisional liberty, opposing the tendency toward manipulating social panic that results in restrictive interpretations of guaranteeing principles. Starting from the premise that all procedural detention necessarily carries a precautionary character, subject to the requirements of fumus boni iuris and periculum in mora, the author critically analyzes preventive detention, in flagrante arrest, the denial of provisional liberty imposed by Law 8,072/90, the temporary detention established by Law 7,960/89, and detention arising from an appealable conviction, demonstrating, with support from doctrine and Supreme Federal Court case law, the unconstitutionality of mandatory detention grounded in legal presumptions. She concludes that the primacy of constitutional norms must be restored, always requiring concrete and reasoned demonstration of the precautionary necessity of detention, lest it amount to an impermissible anticipation of punishment.