Art. 311. At any stage of the police investigation or criminal proceedings, preventive detention decreed by the judge, at the request of the Public Prosecutor’s Office, the complainant or the assistant, or by representation of the police authority, shall apply. (Wording given by Law No. 13.964, of 2019) (Effective)
Phases in which prevention is appropriate
Temporary arrest: See this same title in the comments to Article 282.
Appropriateness of the preventive: It is appropriate at any stage of the police investigation or process. It cannot be decreed ex officio by the judge (in the same way that personal precautionary measures other than imprisonment cannot be imposed ex officio by the judge – article 282, paragraph 2 ). Injunctions depend on a request from the Public Prosecutor’s Office, the plaintiff or the assistant, or on behalf of the police authority. Prior to the amendment of this provision by Law n. 13.964/2019, the judge could, after offering the complaint, in the course of the process, apply, without any request, the preventive measure.
Representation of police authority: It is also supported by Article 13, IV .
Representation and application. Need for elements of conviction: A simple official letter from the police authority or a simple request by the party for the judge to order the preventive measure is not enough. It is necessary that these files are accompanied by elements of conviction as to the presence of the requirements that authorize the preventive decree.
The custody hearing in flagrante delicto, preventive and temporary : See this same title in notes to article 310.
Preventive decreed by the Court: It is possible, since preventive detention can be decreed in the course of criminal proceedings (article 311). The judges of the higher instances have the same powers and competences as those of the 1st instance.
Flavio Meirelles Medeiros: Preventive Prison in Six Stages .
Andre Luis Callegari. Improper preventive measures violate the Code of Criminal Procedure . Conjure
Artur Barros Freitas Osti and Filipe Maia Broeto Nunes. The illegality of repeated preventive arrests . Conjure
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.
Gilmar Ferreira Mendes: Public Safety and Criminal Justice . The constitutionalists.
Guilherme Augusto Cruz Andrade: Analysis of the requirements and assumptions of preventive detention in the light of the Federal Constitution. Legal Scope.
Guilherme Nucci : Pretrial detention is not a criminal sanction . guilhermenucci.com.br.
Guilherme Nucci: Why so many precautionary arrests in Brazil? guilhermenucci.com.br.
Leonardo Isaac Yarochewsky : Like it or not, the state of freedom is the rule and preventive detention the exception . Conjure
Rogerio Schietti Cruz: Criminal Procedural Subsidiarity and Alternatives to Precautionary Prison . Metajus.
Doctrine – drugs and preventive
Guilherme Nucci: The Drug of the Drug Law . guilhermenucci.com.br.
Ney Bello: Incarceration for Small Amounts of Drugs: The Meat of Organized Crime . Conjure
Ney Bello, Pierpaolo Cruz Bottini and Drauzio Varella: For a New Drug Law . Folha.uol.com.br.
After the conversion of arrest in flagrante delicto into preventive, the allegation of nullity that may exist in relation to the absence of a custody hearing is overcome. Source: Jurisprudence in theses (STJ).
RHC 103333/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/06/2018, DJE 12/12/2018
HC 474093/SP, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 12/04/2018, DJE 02/04/2019
RHC 98748/RS, Rel. Minister Laurita Vaz, Sixth Panel, judged on 12/04/2018, DJE 12/19/2018
HC 423564/SC, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 11/13/2018, DJE 11/28/2018
RHC 90346/MG, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 11/06/2018, DJE 11/14/2018
RHC 103097/MG, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 10/04/2018, DJE 10/15/2018
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 .
With the supervenience of decree of preventive detention, the allegations of illegality of segregation in flagrante delicto are impaired, in view of the formation of a new title giving rise to precautionary custody. Source: Jurisprudence in theses (STJ).
RHC 93880/GO, Rel. Justice Sebastião Reis Júnior, Sixth Panel, judged on 12/13/2018, DJE 02/04/2019
RHC 98538/EC, Rel. Minister Joel Ilan Paciornik, Fifth Panel, judged on 12/13/2018, DJE 02/04/2019
HC 476258/SC, Rel. Minister Felix Fischer, Fifth Panel, judged on 12/11/2018, DJE 12/18/2018
HC 448480/SP, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 12/04/2018, DJE 12/14/2018
HC 469605/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 11/27/2018, DJE 12/10/2018
HC 447846/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 11/13/2018, DJE 11/22/2018
Appropriate resources and prison fence
Appropriate resources: Against the decree of preventive habeas corpus . Against the denial of enactment, an appeal in the strict sense can be filed ( article 581, item V ). The MP, the assistant and the plaintiff are authorized to file the appeal in the strict sense.
Condemnation sentence in the course of the habeas corpus action: This is a new procedural fact that must be evaluated at the time of the habeas corpus judgment. It does not constitute grounds for inadmissibility of habeas corpus . The constant motivation of the sentence for the maintenance of the preventive measure must be examined when the hc is judged. The condemnatory sentence must be attached to the habeas corpus records and given the opportunity for the petitioner to appear. If there is new motivation in the decision to maintain the prison, its legality must be examined in order to grant or not the writ .
Pre-trial detention of the President of the Republic: Pursuant to the provisions of article 86, paragraph 3 of the CF , until a conviction has passed, in common infractions, the President of the Republic will not be subject to arrest.
Prison during the election period: According to the Electoral Code, article 236 of Law n. 4737/1965 , no authority may, from five days before and up to 48 hours after the end of the election, arrest or detain any voter, except in flagrante delicto or by virtue of a criminal sentence condemning a non-bailable crime, or even for disrespecting the safe-conduct.
The supervenience of a condemnatory criminal sentence does not harm habeas corpus: The supervenience of a condemnatory criminal sentence, which maintains preventive detention with reference to the same grounds as the original decree, does not affect habeas corpus ( HC 137.728, rel. min. Dias Toffoli, DJE of 31-10-2017 ).
Once preventive detention is decreed, the thesis of excessive time in communicating the act is overcome. Source: Jurisprudence in theses (STJ).
RHC 102488/CE, Rel. Minister Ribeiro Dantas, Fifth Panel, judged on 10/16/2018, DJE 10/24/2018
RHC 102209/SP, Rel. Minister Reynaldo Soares da Fonseca, Fifth Panel, judged on 09/18/2018, DJE 09/28/2018
HC 375488/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/16/2017, DJE 03/15/2017
HC 325958/AL, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 08/18/2015, DJE 09/01/2015
RHC 39284/SP, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 09/19/2013, DJE 09/26/2013
RHC 37334/SP, Rel. Minister Marilza Maynard (TJ/SE Judge), Fifth Panel, judged on 06/11/2013, DJE 06/17/2013
Preventive and supervening condemnation. Impaired appreciation of the habeas corpus: The supervening conviction, even if it does not launch grounds that are undoubtedly autonomous and different from the original prison order, prejudices the filing of habeas corpus aimed at challenging the segregation decree initially attacked ( HC 143.333, rel. min. Edson Fachin, DJE of 21-3-2019 ).