Art. 282. The precautionary measures provided for in this Title shall be applied observing the following: (Wording provided by Law No. 12,403, of 2011).
I – necessity for the application of criminal law, for investigation or criminal instruction and, in the cases expressly provided for, to avoid the commission of criminal offenses; (Included by Law No. 12,403 of 2011).
II – suitability of the measure to the seriousness of the crime, circumstances of the fact and personal conditions of the indicted or accused. (Included by Law No. 12,403 of 2011).
§ 1 he precautionary measures may be applied separately or cumulatively. (Included by Law No. 12,403 of 2011).
§ 2 The precautionary measures will be decreed by the judge at the request of the parties or, when in the course of the criminal investigation, by representation of the police authority or upon request of the Public Ministry. (Wording provided by Law No. 13,964, of 2019)
§ 3 Except for cases of urgency or danger of ineffectiveness of the measure, the judge, upon receiving the request for a precautionary measure, will order the summons of the opposing party, to manifest itself within a period of 5 (five) days, accompanied by a copy of the request and the necessary documents, with the case remaining in court, and cases of urgency or danger must be justified and based on a decision that contains elements of the concrete case that justify this exceptional measure. (Wording given by Law No. 13.964, of 2019) (Effective)
§ 4 In the event of non-compliance with any of the obligations imposed, the judge, upon request of the Public Prosecutor’s Office, his assistant or the complainant, may replace the measure, impose another in addition, or, as a last resort, decree preventive detention, in the terms of the sole paragraph of art. 312 of this Code. (Wording given by Law No. 13.964, of 2019) (Effective)
§ 5 The judge may, ex officio or at the request of the parties, revoke the precautionary measure or replace it when he finds that there is no reason for it to remain, as well as re-enact it, if there are reasons that justify it. (Wording given by Law No. 13.964, of 2019) (Effective)
§ 6 Preventive detention will only be determined when it is not appropriate to replace it with another precautionary measure, observing art. 319 of this Code, and the non-appropriation of replacement by another precautionary measure must be justified in a reasoned manner in the elements present in the concrete case, on an individual basis. (Wording given by Law No. 13.964, of 2019) (Effective)
Gradual improvement of CPP. Appropriate measure.
Tokyo Rules and amendments to Law no. 12,403/11: The United Nations Standard Minimum Rules on Non-Deprivation of Liberty Measures, or Tokyo rules, resulted from discussions initiated in Tokyo. They were approved by the UN in 1990. Member States must adopt non-custodial measures in order to reduce the application of prison sentences. Twenty-one years later, Title IX of Book I, of the CPP, which deals with provisional arrest, precautionary measures and bail, passed with the advent of Law 12.403/11, and more recently with Law n. 13,964/19, for several, deep, necessary and appropriate changes. More specific changes should, and can, be made to the text of the 1941 CPP. Instead of considering publishing a new Code, it would be better if the idea of what was done with the Civil Procedure Code were copied, subjecting it year after year to reformulations and improvements in several of its normative dispositions. As soon as these changes are made to the Codes, and their practical effects are perceived, whether positive or negative, the formulation of a new codification should be considered. First, change and change to improve what you have, and only then, later, design a new code. In 2016, Minister Ricardo Lewandowski, President of the National Council of Justice, in the presentation of the publication “Tokyo Rules”, he wrote: “The Brazilian State has more than 620,000 people in custody, among which 41% still have not been convicted. More significant is to realize that in the period between 1990 and 2014, the increase in the prison population was 575%, something that reflects the upward curve of mass incarceration that amplified in Brazil, following a worldwide trend. This unbridled growth of the prison population takes place amid the sophistication and improvement of the forms of organization and functioning of the repressive apparatus, notably from the perspective of a more punitive legislative authorization. Inspections by the National Council of Justice (CNJ) denounced, however, that the prison environment in Brazil is still marked by another type of punishment, consistent with the way it is carried out. Ruined architectural structures,
Guilherme Nucci: The precautionary prison and the Federal Constitution of 1988 . guilhermenucci.com.br
Guilherme Nucci: Pre-trial detention is not a criminal sanction . guilhermenucci.com.br
Guilherme Nucci: Why so many precautionary arrests in Brazil? guilhermenucci.com.br
Illegality of provisional arrest when it represents a measure more severe than the possible penalty to be applied: It is illegal to maintain provisional arrest in the event that it is plausible to anticipate that the start of compliance with the reprimand, in the event of a possible conviction, will take place It is under a less rigorous regime than the closed one ( HC 182.750-SP, Reporting Minister Jorge Mussi, judged on 5/14/2013 – Bulletin No. 0523 ). 282 311
Incompatibility between pre-trial detention and open or semi-open regime: If the defendant is sentenced to a sentence that must be served in an initial regime other than the closed one, the decree or maintenance of pre-trial detention in the conviction sentence will not be admissible ( STJ, RHC 52.407-RJ, Rapporteur Justice Felix Fischer, judged on 12/10/2014, DJe 12/18/2014 – Newsletter 554 ). 282 311
Conviction sentence on grounds other than preventive. Impaired habeas corpus: There is prejudice to habeas corpus when the conviction that keeps the defendant in custody uses grounds other than the preventive detention decree ( HC 119.396/ES, rel. min. Cármen Lúcia, judged on 2/4/2014, judgment published in the DJE of 2/14/2014 – Bulletin 734, Second Panel). 282 312 habeas sentence
Criminal Procedural Law. Maintenance of preventive detention after appealable sentence to semi-open prison regime: Pre-trial detention can be maintained during the appealable sentence that applied the semi-open regime for the fulfillment of the sentence, provided that the reasons that initially justified it persist and that its fulfillment is adequate to the intermediate mode of execution applied ( STJ, RHC 53.828-ES, Judge Judge Jorge Mussi, judged on 4/14/2015, DJe 4/24/2015 – Newsletter 560 ).
Preventive is only applicable if it is not feasible to apply a non-prison precautionary measure: For the legitimate decree of preventive detention, it is essential to demonstrate that none of the alternative measures indicated in article 319 of the CPP is capable of, in the specific case, effectively meeting the same purposes ( HC 127.186, rel. min. Teori Zavascki, judgment on 4/28/2015, judgment published in the DJE of 8/3/2015 – Newsletter 783, Second Panel).
Pregnant woman, minor child and possibility of substitution of preventive custody for house arrest: It is possible to replace preventive custody with house arrest when the agent is pregnant or a woman with a child of up to twelve years of age ( HC 134.069, rel. min. Gilmar Mendes, judgment on 6/21/2016, DJE of 8/1/2016 – Bulletin 831, Second Panel).
An appeal in the strict sense is possible against a decision that revokes a precautionary measure other than imprisonment: Appeal in the strict sense. Definitive role. Extensive Interpretation. Admission. Revocation of precautionary measure other than imprisonment. Appropriateness. It is possible to appeal in the strict sense against a decision that revokes a precautionary measure other than imprisonment (…) due to strict legality and the very principle of due process of law, it is not admissible that, by analogical interpretation, the use of a certain appeal is allowed when the law does not provide for that specific situation. In addition, the appeal in the strict sense is an exception to the general rule of non-appealability of interlocutory decisions in criminal proceedings (…) according to doctrine “like any legal rule, hypotheses may receive the so-called extensive interpretation. This does not expand the legal role; it only admits that a given situation fits into the interpreted device, despite its more restrictive language”. Based on these assumptions, it is concluded that the act of revoking preventive detention, expressly provided for in item V of article 581 of the CPP, is similar to the act of revoking a precautionary measure other than imprisonment, which allows for an extensive interpretation of the article and, consequently, , the filing of the appeal in the strict sense (REsp 1.628.262-RS, Rel. Minister Sebastião Reis Júnior, unanimously, judged on 12/13/2016, DJe 12/19/2016 – Newsletter 596 ).
Money laundry. Drug trafficking. Criminal organization. Possibility of precautionary measures other than prison: In the event that the subject’s role in the criminal organization of drug trafficking was limited to money laundering, it is possible that precautionary measures other than prison may be applied to him when the organization is found to be unable to continue to act, before the arrest of the members directly responsible for the trafficking ( STJ, HC 376.169-GO, Judge Nefi Cordeiro, Judge for judgment Judge Sebastião Reis Júnior, by majority, judged on 1/12/2016, DJe 14/12/ 2016 – Newsletter 594 ).
The reprehensibility of the conduct, by itself, does not justify the precautionary arrest: However serious and reprehensible the conducts supposedly perpetrated are, this does not, by itself, justify the decree of the precautionary arrest ( HC 137.728, rel. min. Dias Toffoli , DJE of 10-31-2017 ).
The concrete risk of criminal repetition must be current: The concrete risk of criminal reiteration, invoked to guarantee public order, must be contemporaneous with the prison decree ( HC 137.728, rel. min. Dias Toffoli, DJE of 10-31-2017 ).
Woman with a child of up to twelve years of age and house arrest: Pre-trial detention may be replaced by house arrest when the agent is a woman with a child of up to twelve years of age, and the court must establish the respective conditions ( HC 136.408, rel. min. Marco Aurélio , DJE of 19-2-2018 ).
They do not constitute anticipation of the sentence and presumption of innocence
Rule of non-significance of anticipation of penalty: Precautionary arrests (in flagrante delicto, preventive, temporary or even personal precautionary measures other than prison), one must bear in mind, especially judges, official applicators of the right to concrete cases, do not constitute and cannot be used, in any way , for the anticipation of the fulfillment of sentence. These are all precautionary measures of a procedural nature. Far from them a criminal nature, of substantive, material law. Even the consideration that eventually they will be sentenced, and consequent sentencing, from which the time for complying with the precautionary measure may be deducted, is not capable of substantiating a criminal nature. Caterpillar is not butterfly for the simple fact that in the future it will become one. Since the procedural prison is not a criminal law prison, it cannot be used to punish the accused, to repair the crime, to render accounts to society. It is a measure that can only be applied when absolutely necessary to ensure the normal course of the criminal proceedings.
Principle of presumption of innocence and revocation of CPP provisions: In several passages, the 1941 CPP adopted the principle of presumption of guilt. But the advent of the 1988 CF gave new strength to the principle of the presumption of innocence. Imprisonment, as a consequence of a conviction, is only authorized with the final and unappealable decision (but there is an oscillation in the jurisprudence – see the subtitle Transit in rem judicata and the comings and goings of the jurisprudence in the title A provisional execution and the STF , in comments to the article 283). It is based on the principle of the presumption of innocence that articles 393 , 594 and 595 of the CPP, and 408 had its wording changed. 393 obliged the arrest of the defendant with the publication of the condemnatory sentence and determined the posting of the defendant’s name on the list of guilty parties. 408 provided for imprisonment as a result of the indictment, unless the defendant was first-time offender and had a good record. 594 contained a provision for the need to be sent to prison for the defendant to appeal, and 595 foresaw the desertion of the appeal in case of escape of the convict.
Precautionary detention does not rule out the presumption of innocence: On this subject, see the title Second Argument. Pretrial detentions and constitutionality , in comments to article 283.
Procedural nature of the norms, interpretative consequences and general power of caution of the criminal judge
Procedural nature of precautionary rules: Rules of criminal law are those that specifically regulate the State’s right to punish. Norms of this kind are those that predict crimes, that establish their penalties, that exclude anti-juridicity, culpability, punishability, that is, norms responsible for regulating the subjective right to punish state. Procedural norms are those that deal with the beginning, progress and end of the criminal process, and even its executive phase. Those relate to the legal relationship of criminal law that links the State to the defendant, those to the procedural relationship that connects the judge to the other subjects of the process. Precautionary norms are procedural norms, since they do not regulate the right to punish, but only procedural measures that aim to ensure the effectiveness of the process.
Consequences of the procedural nature of precautionary rules: Procedural rules are governed by the principle of immediate application. They are applicable from their effectiveness, affecting the process at the stage it is in, regardless of whether the procedural relationship started prior to the new law. Even if the criminal nature of these norms were admitted, the application would be immediate, since they are more beneficial insofar as they are intended to replace precautionary arrest (preventive, flagrant or temporary). Being procedural, they admit extensive interpretation and integration with the aid of the general principles of law and analogy.
General power of caution of the criminal judge: With regard to the general power of caution of the criminal judge and the possibility of imposing atypical precautionary measures, see subtitle Rol exemplifying or exhaustive? The general power of caution of the criminal judge in the title Arrolamento merely exemplifying and general power of caution of the criminal judge, in comments to article 319.
Flavio Meirelles Medeiros: The criminal judge has a general power of caution .
Flavio Meirelles Medeiros: Pretrial detention carried out at home or house arrest
Classification of injunctions
Classification: Precautionary measures in criminal proceedings can be real , probative (or instructive) and personal (or subjective). The personal or subjective ones are divided into provisional arrest and precautionary measures other than prison . Pre-trial detention, in turn, can be arrest in flagrante delicto , preventive detention and temporary detention . The so-called house arrest is not a new category among these three types of prison, but a substitute for one of them.
Real precautionary measures: These are the measures in articles 12 5 to 144 (confiscation, bond, kidnapping, legal mortgage, arrest), which are intended to guarantee the effectiveness of the civil effects of the conviction, such as repairing the damage caused to the victim .
Probationary or instructive precautionary measures: These are the norms of articles 240 to 250, which deal with search and seizure. Of the same nature, among others, the norm of article 217 , which authorizes the withdrawal of the defendant from the hearing when it may cause fear or embarrassment to the witness, and telephone interception ( article 5, XII, of the CF ). Probation precautionary measures seek to maintain the integrity of the evidentiary material and enable its efficient collection.
Arrest in flagrante delicto: Arrest in flagrante delicto is an administrative and precautionary measure that falls on the person of the accused. Hence, it is said to be personal, as are the preventive, temporary and different precautions of imprisonment listed in Article 319 . The arrest in the act is the one carried out when the agent is committing the crime or soon after. Article 302 lists the factual hypotheses of flagrante delictual.
Pre-trial detention: Pre-trial detention may be decreed, obligatorily at the prior request of the party, by the judge during the course of the inquiry or proceeding. It is subject to two mandatory and three alternative requirements. Mandatory are the existence of vehement indications (proof) of the existence of a crime and sufficient of authorship. In addition to these two mandatory requirements, one of the following assumptions of the need for arrest must be present : either to guarantee public (or economic) order, or for convenience of criminal instruction, or to ensure the application of criminal law. Briefly translated, so that the defendant does not commit new crimes, so that he does not interfere with the collection of evidence and so that he does not run away.
The danger represented by the freedom of the accused: The danger of allowing the accused or the accused to remain free and the concrete existence of new or contemporary facts to justify the preventive measure (conditions for the enactment of the preventive measure introduced in article 312 , caput , and its paragraph 2 , by Law n. 13.964/19) do not constitute new requirements of the preventive measure. They are just explanations of what was already contained in the law. These are legal amendments of a merely declaratory nature. These are declarations of a declaratory nature and essential, as they aim to avoid misinterpretation of the law.
Personal precautionary measures other than imprisonment: See comments to Article 319 .
Principles governing personal precautionary measures:
Due process: The precautionary measure can only be applied if its requirements are met. It is the principle of due process contained in article 5, LIV, of the CF : “No one shall be deprived of liberty or of his property without due legal process”.
Adequacy and proportionality (Article 282, II): There must be proportionality, reasonableness and adequacy between the precautionary measure applied and the gravity of the crime, its circumstances and the personal conditions of the accused or accused. By proportionality it is understood not only that the measure cannot be more or less restrictive than necessary. Imprisonment should only be applied after exhausting the possibilities of solution through the adoption of personal precautions other than imprisonment.
Discretionary freedom: If the prosecutor asks for the application of a certain precautionary measure, the judge can adopt another, as long as it is not more burdensome, even if not provided for by law. There is discretion, not arbitrariness. For the application of unnamed measures, in the exercise of the general power of caution, the magistrate cannot violate the general principles of law and the principles of proportionality and equity.
Exemplary or exhaustive role? The general power of caution: See this same subheading under the title Listing merely exemplary and general power of caution of the criminal judge , in comments to article 319.
Contradictory and broad defense: When it is applied, the defense and prosecution must be heard (Article 282, paragraph 3). With the exception of cases of urgency or danger of the ineffectiveness of the measure, the judge, upon receiving the request for a precautionary measure, will order the subpoena of the opposing party, accompanied by a copy of the application and the necessary documents, with the records remaining in court. In case of urgency or risk of ineffectiveness of the measure, after the enactment of the preliminary injunction, the opposing party must be given the opportunity to demonstrate. Cases of urgency or danger must be justified and based on a decision that contains elements of the specific case that justify this exceptional measure. If there is no contradictory, the way for habeas corpus is open, because where there is no contradictory, the grounds are considered non-existent.
Cumulative: The measure can be applied separately or cumulatively with others (article 282, II, paragraph 1).
Mutability: In the event of non-compliance with any of the imposed obligations, the judge, upon request of the Public Prosecutor’s Office, his assistant or the complainant, may replace the measure, impose another in addition, or, as a last resort, decree preventive detention, in the terms of the sole paragraph of art. 312 of this Code. (article 282, II, paragraph 4).
Necessity: Necessity is one of the most important principles governing precautionary measures. No precautionary measure is applied if it is not timely and useful (Article 282, I).
Provisional nature: The judge may revoke the precautionary measure or replace it when he finds no reason for it to persist, as well as re-enact it, if there are reasons that justify it (article 282, II, paragraph 5).
Jurisdiction: Can only be decreed by the judge.
Flavio Meirelles Medeiros: The criminal judge has a general power of caution .
Artur Barros Freitas Osti. Decree of precautionary arrest is unacceptable without prior contradictory . Conjure
Gustavo de Mattos Brentano: The application of the principle of insignificance by the Chief of Police . Criminal Science Channel.
The facts that justify preventive detention must be contemporary with the decision that enacts it. Source: jurisprudence in theses (STJ).
HC 214921/PA, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 03/17/2015, DJE 03/25/2015
HC 299733/RJ, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 12/09/2014, DJE 12/19/2014
HC 119533/ES, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 05/27/2014, DJE 06/10/2014
HC 246229/SP, Rel. Minister Laurita Vaz, Fifth Panel, judged on 05/15/2014, DJE 05/23/2014
HC 282722/RR, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 03/25/2014, DJE 04/02/2014
HC 227118/SP, Rel. Minister Campos Marques (Judge summoned from the TJ/PR), Fifth Panel, judged on 02/21/2013, DJE 02/27/2013
HC 245466/CE, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 11/27/2012, DJE 12/18/2012
Pretrial detention must be based on concrete elements that effectively justify its necessity. Source: jurisprudence in theses (STJ).
HC 315093/SP, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 03/24/2015, DJE 04/06/2015
HC 311440/SP, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 03/10/2015, DJE 04/06/2015
RHC 056167/BA, Rel. Minister Jorge Mussi, Fifth Panel, judged on 03/19/2015, DJE 04/06/2015
HC 305676/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 03/19/2015, DJE 04/06/2015
HC 307259/MG, Rel. Minister Newton Trisotto (Judge summoned from the TJ/SC), Fifth Panel, judged on 03/19/2015, DJE 03/31/2015
RHC 043452/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/19/2015, DJE 03/31/2015
RHC 041379/CE, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 03/19/2015, DJE 03/27/2015
HC 252394/MG, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 03/17/2015, DJE 03/26/2015
HC 308822/CE, Rel. Minister Ericson Maranho (Judge summoned from the TJ/SP), Sixth Panel, judged on 03/17/2015, DJE 03/25/2015
AgRg in AREsp 006012/DF, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 02/24/2015, DJE 03/11/2015
Pretrial detention is not legitimate in cases where the sanction abstractly provided for or imposed in the appealable conviction does not result in personal constriction, by virtue of the principle of homogeneity. Source: jurisprudence in theses (STJ).
HC 303185/MT, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 03/10/2015, DJE 03/17/2015
HC 179812/MS, Rel. Minister Newton Trisotto (Judge summoned from the TJ/SC), Fifth Panel, judged on 02/05/2015, DJE 03/06/2015
RHC 052407/RJ, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/09/2014, DJE 12/18/2014
RHC 049916/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 09/09/2014, DJE 09/25/2014
HC 244825/AM, Rel. Minister Regina Helena Costa, Fifth Panel, judged on 10/22/2013, DJE 10/28/2013
RHC 034226/RJ, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 05/28/2013, DJE 06/05/2013
HC 251846/SP, Rel. Minister Campos Marques (Judge summoned from the TJ/PR), Fifth Panel, judged on 10/16/2012, DJE 10/19/2012
Ordinary appeal against excess of precautionary measures established in habeas corpus : It is admissible to file an ordinary appeal to challenge the judgment of the Second Degree Court granting the order of habeas corpus in the event that it is intended to question any excess of precautionary measures established at the time of approval provisional release ( STJ, RHC 65.974-SC, Judge Reynaldo Soares da Fonseca, judged on 3/10/2016, DJe 3/16/2016 – Newsletter n. 579 ).
Personal guardianship requirements
Requirements: According to the provisions of item I of article 282, personal precautionary measures must be applied observing “the need for the application of criminal law, for investigation or criminal instruction and, in the cases expressly provided for, to avoid the practice of criminal offences” . Necessity for the application of criminal law is verified when the accused or accused tries to flee. For investigation or criminal instruction, when trying to interfere with the collection of evidence. And to avoid the commission of criminal offenses, when there are indications that in freedom the accused will continue to commit crimes.
“Cases expressly provided for ?”: To avoid the commission of criminal offenses, the legislator conditions the application of the precautionary measure to that the “cases are expressly provided for” (item I of article 282). The legislator has said more than he should. This part of the device’s wording should be considered unwritten. There is no such legal provision. It would be impossible to foresee and list all the cases in which it is necessary to avoid the practice of criminal infractions, not least because, in principle, each and every criminal infraction must be prevented preventively. Therefore, in the absence of the possibility of adapting the text to the legal order, it remains to have it as unwritten.
Precautionary measures other than prison, although more beneficial, imply restrictions on individual rights, requiring justification for their imposition. Source: jurisprudence in theses (STJ).
HC 302730/PA, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 12/16/2014, DJE 02/05/2015
RHC 042853/RS, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 12/18/2014, DJE 02/02/2015
RHC 037377/SP, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 12/09/2014, DJE 12/19/2014
HC 292792/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/02/2014, DJE 12/10/2014
RHC 036443/SP, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 09/16/2014, DJE 11/27/2014
HC 246582/MG, Rel. Minister Jorge Mussi, Fifth Panel, judged on 02/11/2014, DJE 02/25/2014
Application and non-compliance
Application by letter or upon request: According to the provisions of article 282, paragraph 2, “precautionary measures shall be decreed by the judge at the request of the parties or, when in the course of the criminal investigation, by representation of the police authority or at the request of the Public Ministry”. With the advent of Law n. 13.964/19, which changed the wording of this paragraph 2, the judge can no longer, ex officio, decree the preventive measure. In the previous system, he could issue a decree ex officio, although this faculty existed only in the procedural phase, and not in the investigation phase. Currently, therefore, preventive only with prior request of the party, the police chief or the prosecutor. Once the application of a precautionary measure is in progress, there is no impediment for the judge, ex officio, to revoke it, Article 319 , for example). It cannot, on the other hand, without a request, substitute a less serious measure for a more serious one, since the aggravation represents a new measure.
Domestic violence: In the case of domestic or family violence against a woman, the measure may be requested by the victim, including in the initial phase of the investigation ( article 18 of Law 11.340/2006 ).
Jurisdiction of the guarantees judge: According to article 3 and its items, it is incumbent upon the guarantees judge to control the legality of the criminal investigation and to safeguard individual rights, to receive the arrest warrant in flagrante delicto to control the legality of the arrest, subject to the provisions in art. 310 of this Code and decide on the request for provisional arrest or other precautionary measure. It is the guarantees judge who decides on whether or not to maintain the prison of the investigated person, with the application or not of preventive detention or other precautionary measures.
Replacement of the flagrante delicto by the preventive one. Need for an application: See this same subheading under the heading Grounds for the decision and measures taken by the judge upon receiving the arrest warrant in the comments on article 310.
The disregard does not depend on the request of the party: With regard to granting bail or any other non-prison precautionary measure, there is no need for a request from anyone. If the accused was arrested in flagrante delicto (more burdensome precautionary measure) and is released through the application of a non-prison precautionary measure (less burdensome precautionary measure), the judicial action took place in the opposite direction of the inquisitority, that is to say, there was no precautionary measure in the action, but rather an oversight. The judge cannot rule without a request from the party in the pre-procedural phase. Unguarding can. For the same reason, to set free no one needs to be heard. It constitutes a sovereign decision of the magistrate.
Non-compliance with the precautionary measure and decree of the preventive measure: Article 282, paragraph 4, provides that “In the event of non-compliance with any of the imposed obligations, the judge, at the request of the Public Prosecutor’s Office, his assistant or the complainant, may replace the measure, impose another in addition, or, ultimately, case, order preventive detention”. In this exceptional case, the preventive measure is applied on two grounds: out of necessity and as a sanction. Necessity because the caution that had as objective the effectiveness of the judicial provision was not complied with, and sanction because it represents a punishment for the non-compliance with the court order. There would be no point in applying the non-prison precautionary measure if its non-compliance was not sanctioned, protected by another rule, which replaces the precautionary measure with the preventive one. Alongside the institutes of inadmissibility, decadence, peremption, estoppel, nullity, prescription, now one more sanction is in place, preventive detention. Therefore, preventive detention that substitutes precautionary measures other than prison does not require the presence of the preventive requirements established in the article 313 .
Who can apply for personal precautions: Who can request personal precautions are the victim, the police chief, the Public Prosecutor’s Office, the assistant to the prosecution and the plaintiff.
Presence of the preventive requirements does not oblige its application. Preference for the precautionary measures of article 319: The reading of paragraph 6 of this article 282 authorizes the conclusion that preventive detention is a substitute for non-prison precautionary measures. In other words, preventive measures are only applied as a last resort. Even if all the requirements for the application of the preventive measure are present, the judge can apply a non-prison precautionary measure, provided that it is adequate. Let’s give an example: Carlos is accused in the process of personal injuries. He is considered a violent person, being a multiple offender in this crime. He is threatening witnesses residing in the neighboring town. The preventive requirements are present (proof of the existence of a crime, sufficient evidence of authorship, convenience of criminal instruction, convicted of another intentional crime in a final and unappealable sentence). The judge may impose electronic monitoring precautions, forbidding Carlos from approaching the neighboring city (article 319, items II and IX). The non-appropriation of replacement by another precautionary measure must be justified in a reasoned manner in the elements present in the concrete case, on an individual basis.
Camile Eltz de Lima: The problem of penal detraction in alternative precautionary measures to prison: from gaps to possible discounts . wunderlich.com.br.
Fabrício Meira Macêdo: Prison and other precautionary measures in criminal proceedings in the light of the constitution: a Portuguese-Brazilian approach to the motivation of judicial decisions from the perspective of the prohibition of excess and prohibition of insufficiency . repository.ul.pt. 2016
Geraldo Lopes Pereira: Possibility of replacing the custodial sentence with one restricting rights in trafficking . Anadep.
Renato Marcão: The accusatory system and arts. 212 and 310, II, of the CPP . Legal Content.
Rogerio Schietti Cruz: Criminal Procedural Subsidiarity and Alternatives to Precautionary Prison . Metajus.
Rogério Barbosa: Judges question preventive detention decreed ex officio . Conjure
Flavio Meirelles Medeiros: Preventive Prison in Six Stages
Imprisonment is the last reason for precautionary measures: Considering that imprisonment is the last reason for precautionary measures (§ 6 of art. 282 of the CPP – included by Law No. , of the various precautionary measures listed in art. 319 of the CPP, with the amendment of Law No. 12.403/11 ( HC 106446, Rapporteur: Justice CÁRMEN LÚCIA, Rapporteur for Judgment: Justice DIAS TOFFOLI, First Panel, judged on 09/20/2011) .
The role of the Judiciary in the pre-procedural phase is only admissible in order to protect fundamental guarantees: The separation between the functions of prosecuting, defending and judging is the essential sign of the accusatory system of criminal procedure (Art. 129, I, CRFB), making the performance of the Judiciary in the pre-procedural phase is only admissible with the purpose of protecting the fundamental guarantees of those investigated (FERRAJOLI, Luigi. Derecho y Razón – Teoría del Garantismo Penal. 3rd ed., Madrid: Trotta, 1998. p. 567) – ADI 4414, Rapporteur: Min. LUIZ FUX, Full Court, judged on 05/31/2012 .
The replacement of precautionary imprisonment by other measures, when applicable, is the judge’s duty: The judge has not only the power, but the duty to replace precautionary imprisonment by other measures whenever these are of similar procedural aptitude ( HC 132.233, rel. min. Teori Zavascki, judgment on 4/26/2016, DJE of 5/18/2016 – Bulletin 823, Second Panel).
There is no nullity in the event that the magistrate, ex officio, without prior provocation by the police authority or the ministerial body, converts the arrest in flagrante delicto into preventive, when the requirements set forth in article 312 of the Code of Criminal Procedure – CPP are present. Source: Jurisprudence in theses (STJ).
HC 474322/MG, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 02/12/2019, DJE 02/19/2019
RHC 105718/RO, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 02/05/2019, DJE 02/13/2019
RHC 105955/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/05/2019, DJE 02/13/2019
RHC 102770/MG, Rel. Minister Laurita Vaz, Sixth Panel, judged on 12/06/2018, DJE 02/01/2019
RHC 102326/MG, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 11/13/2018, DJE 12/04/2018
RHC 101359/MG, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 10/23/2018, DJE 11/16/2018
Conversion of arrest in flagrante delicto into preventive: Even after the innovations brought by the Anti-Crime Package (Law n. 13.964/2019), there is no illegality in the conversion of arrest in flagrante into preventive, ex officio, by the magistrate ( HC 605.305- MG , Reporting Judge Nefi Cordeiro, Reporting Judge Antonio Saldanha Palheiro, Sixth Panel, by majority, judged on 10/06/2020, DJe 10/27/2020).
Crimes of abuse of authority
Crimes of abuse of authority: According to Law no. 13,869/2019, it is a crime to enact a measure of deprivation of liberty in manifest non-compliance with the legal hypotheses. Incurs the same penalty for the judicial authority that, within a reasonable time, fails to: relax the manifestly illegal arrest; replace preventive detention with a different precautionary measure or grant provisional release, when clearly applicable; grant an injunction or order of habeas corpus, when clearly applicable.
Temporary arrest. Appropriateness: Temporary arrest is provided for in Law 7.960/1989 . Finds fit (Article 1):
I – when essential for the investigations of the police inquiry;
II – when the accused does not have a fixed residence or does not provide elements necessary to clarify his identity;
III – when there are well-founded reasons, in accordance with any evidence admitted in criminal law, of authorship or participation of the accused in the following crimes:
a) intentional homicide ( article 121, caput , and its 2nd paragraph);
b) kidnapping or false imprisonment ( article 148, caput , and its §§ 1° and 2 °);
c) theft ( article 157, caput , and its 1st, 2nd and 3rd §§ );
d) extortion ( article 158, caput , and its §§ 1 and 2 );
e) extortion through kidnapping (article 159, caput , and its §§ 1, 2 and 3);
f) rape ( article 213, caput , and its combination with article 223, caput , and sole paragraph);
g) indecent assault (article 214, caput , and its combination with article 223, caput , and sole paragraph );
i) epidemic resulting in death ( article 267, § 1 );
l) gang or band ( article 288 ), all of the Penal Code;
m) genocide (Articles 1, 2 and 3 of Law No. 2,889, of October 1, 1956), in any of its typical forms;
n) drug trafficking (Article 12 of Law No. 6,368 of October 21, 1976);
o) crimes against the financial system ( Law No. 7,492, of June 16, 1986 );
p) crimes provided for in the Terrorism Law (Included by Law 13,260, of 2016).
Temporary arrest. Appropriateness. Poor wording: As noted, in the wording of Law 7.960/89 , temporary arrest is applicable in three hypotheses: (1) it is necessary for investigations during the investigation phase, (2) absence of a fixed residence or difficulty in identifying the accused and (3) in certain crimes of exceptional gravity. The wording of the device is terrible, as it leaves room for many doubts. It does not clarify whether they are alternative or cumulative requirements. There is no clear and express reference to the need for evidence of the offense and authorship.
Temporary arrest. Appropriateness. Interpretively correcting the bad wording: Temporary imprisonment is very similar to preventive imprisonment, as it is provisional and subject to certain requirements. It is appropriate when it is essential for the investigations of the police investigation and there is evidence of authorship or participation of the accused in certain crimes. It is regulated by Law n. 7,960/89. In view of the express, single and exhaustive reference to the indispensability for police investigation investigations, temporary arrest is not appropriate for guaranteeing public order or for ensuring the application of criminal law. In these two hypotheses, preventive, never temporary, will be applicable. The reason for this limitation of the applicability of temporary arrest to the convenience of probative instruction is that it is extremely exceptional, in that it does not require proof of the crime and authorship, but only some indications. The intention of the legislator makes sense. I wanted to reserve the temporary detention for the police investigation stage and with the aim of collecting evidentiary material, essential for the eventual and subsequent opening of the criminal action. In view of the exceptionality Temporary arrest (because it requires less proof and evidence than preventive detention), it can only be applied to the crimes expressly listed. Since it is an exceptional and restrictive rule of the defendant’s right, it must also be interpreted with a restrictive result. In other crimes, therefore, the applicable prison measure will be preventive. If evidence of a crime of authorship is present, and it is necessary for the investigations, for the temporary measure to be applied, the third requirement is still lacking: that it be one of the offenses set forth in item III, article 1, of law 7.960/89 . The list is exhaustive because temporary imprisonment is restrictive of the right to freedom and extremely exceptional. If there is no possibility of one of those crimes, the application of preventive detention may be considered.
Interpretative conclusions: In conclusion, and briefly, the following are cumulative requirements for temporary imprisonment: 1) some evidence of the existence of the crime and authorship; 2) is necessary for the investigation in the police inquiry; 3) the offense investigated and charged is one of those named in item III, of article 1, of Law 7.960/1989 . In the event that the accused does not have a fixed residence or there is difficulty in identifying him, it is also necessary for the presence of these three requirements, the second of which is presumed, since the determined whereabouts and the identification of the accused are indispensable to any investigation. If it is not the case of temporary arrest for lack of any of its requirements, the application of preventive detention may be considered.
Non-mandatory application: In view of the commission of one of the offenses provided for in item III, article 1, of Law 7.960/1989 , temporary imprisonment is appropriate. Evidently this arrest is not obligatory. It is only applied when it is essential for the investigations of the police investigation and the requirements that authorize its enactment are present.
Procedure: Temporary arrest will be decreed by the judge, upon representation by the police authority or a request from the Public Prosecutor’s Office. It will have a period of five days, extendable for an equal period in case of extreme and proven necessity. In the event of representation of the police authority, the judge, before deciding, will hear the Public Prosecutor’s Office. The order ordering the temporary arrest must be substantiated and issued within a period of 24 hours, counting from the receipt of the representation or application. Once the temporary arrest has been decreed, an arrest warrant will be issued, in two copies, one of which will be delivered to the accused and will serve as a note of guilt. The arrest can only be carried out after the issuance of a court order. Once the arrest has been made, the police authority will inform the prisoner of the rights provided for in Article 5 of the Federal Constitution . Once the arrest is made, the prisoner must be taken to the judge for a custody hearing. After the period of five days of detention, the prisoner must be released immediately, unless his preventive detention has already been decreed. Temporary prisoners must remain separate from other detainees. It is an offense of abuse of authority to prolong the execution of temporary imprisonment ( Law n. 13.869/2019 ). In all judicial districts and sections, the Judiciary Power and the Public Prosecutor’s Office will be permanently on call 24 hours a day to consider requests for temporary arrest.
Custody hearing in flagrante delicto, preventive and temporary : See title Deadline for the judge to decide, custody hearing, illegality of the act and preventive decree in notes to article 310.
Guilherme Nucci: Provisional release: truths and myths . guilhermenucci.com.br.
Guilherme Nucci: The precautionary prisons and the procedural reform of 2008 . guilhermenucci.com.br.
Guilherme Nucci: The precautionary prison and the Federal Constitution of 1988 . guilhermenucci.com.br.