Art. 312. Pretrial detention may be decreed as a guarantee of public order, economic order, for the convenience of criminal investigation or to ensure the application of criminal law, when there is proof of the existence of the crime and sufficient evidence of authorship and danger generated by the state freedom of the accused. (Wording provided by Law No. 13,964, of 2019)
§ 1 Pretrial detention may also be decreed in the event of non-compliance with any of the obligations imposed by virtue of other precautionary measures ( art. 282, § 4 ) . (Wording provided by Law No. 13,964, of 2019)
§ 2 The decision to order preventive detention must be motivated and based on fear of danger and the concrete existence of new or contemporary facts that justify the application of the measure adopted . (Included by Law No. 13,964, of 2019)
Assumptions and fundamentals of preventive
Assumptions and fundamentals: Two are the assumptions for enacting the preventive measure (the presence of both is required) and three are its foundations (the presence of at least one of them is mandatory). Mandatory assumptions are: proof of the existence of the crime and sufficient evidence of authorship. Alternative grounds: guarantee of public order or economic order, for the convenience of criminal instruction or to ensure the application of criminal law. Proof of the existence of a crime concerns the materiality of the crime, which is demonstrated with documents, testimonies, forensic examination report and other evidence. As for the sufficient evidence of authorship, full proof is not necessary, but that the evidence is sufficient, that is, that it points out that the agent is the author of the crime. The conviction as to the authorship and materiality required for the preventive decree is less than what is necessary for the final conviction, when then full conviction is needed. For the preventive, conviction is enough; for condemnation, full conviction is essential.
Ensuring public order. Dangerousness of the agent: Preventive action is necessary to guarantee public order when there is a risk that the agent, released, will commit new crimes. In order to reach this conclusion, the seriousness of the crime and its circumstances, the antecedents, the recidivism, the possible cruelty shown, that is, the dangerousness of the agent, are taken into account.
Guarantee of public order and economic order. Repercussions on social media: The repercussion of the crime in the social environment can also configure the need for a precautionary measure as a guarantee of public order. The public disorder caused by the crime, the outcry, the loss of credibility in Justice in the case of the maintenance of freedom, the damage to peace in the social environment, the indispensability of reaffirming the validity of the authority of the legal order, the seriousness of the crime and its circumstances , that is to say, the way in which it was perpetrated, the commotion caused in the community, the popular indignation, so that the feeling of impunity does not hover in the community, constitute a scenario to justify the provisional arrest. According to jurisprudence, public outcry is not enough, it must be accompanied by other elements. With regard to the guarantee of the economic order, it is verified in the face of the possibility that the agent, in freedom, continue to practice activity against the economic and financial order. The magnitude of the damage caused to institutions or public coffers is taken into account.
Imprisonment for the protection of the agent: There is no justification for preventive detention in order to protect the accused from the reactions of the community, the victim or his family. For the protection of the agent, the State has agents of the State, who are responsible for this task.
Convenience of criminal instruction: There is a basis for preventive when prison is convenient for criminal instruction. Criminal instruction concerns the collection of evidence. There is convenience for criminal instruction when the agent seeks to suppress evidence, threatens or tries to bribe witnesses or expert, seeks to destroy material evidence.
To ensure the application of the criminal law: It is necessary to ensure the application of the criminal law when there are indications that the agent intends to flee, leave the country, leave the district of guilt, go into hiding, change residence without notifying the court, dissolve of his assets, abandons his function or job.
Justification: The application of the preventive measure, or its denial, must be accompanied by justification. Simple repetition of the legal formula is not enough, mere conjectures are not enough.
Danger of freedom and new or contemporary facts: The new wording given by Law No. 13,964, of 2019 to this device changed its literality, not the law. It merely declared a pre-existing right. Introduced into the text the danger to the freedom of the accused and new or contemporary factsas requirements for the application of the preventive measure. They are not exactly new requirements, but just an explanation of the meaning of the law. Already before Law n. 13,964 it was required that there was a real danger to the state of freedom of the indicted/accused, as well as it was also essential that the facts were contemporaneous. It is invested with coherence to intend to guarantee the public or economic order of the past through imprisonment in the present. It is thoughtless to ensure the convenience of the criminal instruction that has already been carried out. If in the past the application of criminal law was at risk, with the accused planning to escape, prison is not justified for a risk that no longer exists. The same goes for the danger of freedom. It’s nothing new. Now, the guarantee of public order, the convenience of criminal instruction and the application of criminal law, as the foundations of preventive measures, all of them necessarily presuppose a danger to freedom. If freedom does not pose a danger to order, instruction and the application of the law, there is no basis for preventive measures. Finally, the changes introduced are merely declaratory in nature. You are welcome. They seek to avoid, not exactly the misinterpretation of the law (because it was already clear enough), but that it is violated.
Video
Flavio Meirelles Medeiros: Nullities of the investigation leading to the illegality of the preventive measure and the suspension of the criminal action .
Flavio Meirelles Medeiros: Preventive Prison in Six Stages
Flavio Meirelles Medeiros: Pretrial detention carried out at home or house arrest
Doctrine
Aury Lopes Jr. and Alexandre Morais da Rosa: The Case of Former President Michel Temer and the Distortion of Pretrial Prison . Conjure
Guilherme Nucci: The precautionary prison and the guarantee of public order . guilhermenucci.com.br.
Gustavo Badaró: Pretrial detention and the principle of proportionality . Badaro Lawyers.
Ricardo Lewandowski : The concept of due process has been forgotten lately . Conjure
Jurisprudence
A preventive detention decree based on the abstract gravity of the offense and the consequent presumed dangerousness of the defendant is illegal ( HC 101981, Rapporteur: Minister DIAS TOFFOLI, First Panel, judged on 08/17/2010 ).
Moreover, in extremely exceptional situations, it is legitimate for the defendant to flee to prevent preventive detention that he considers illegal ( HC 101981, Rapporteur: Min. DIAS TOFFOLI, First Panel, judged on 08/17/2010 ).
Moving abroad reported in the case file does not constitute grounds for pre-trial detention: There is no way to validate a prison decree based solely on the accused moving abroad. Change resulting from marriage to a foreigner and duly reported in the criminal proceedings ( HC 102460, Rapporteur: Min. AYRES BRITTO, Second Panel, judged on 11/23/2010 ).
The true meaning of guaranteeing public order: In this case, the arguments of the Court of origin to prohibit the patient from the possibility of appealing freely do not demonstrate that her freedom could cause major disturbances, that society would feel deprived of guarantee for your peace of mind, a fact that, in my view, resumes the true meaning of guaranteeing public order – safeguarding the social environment -, although I am not unaware of the doctrinal position that there is no precise definition in our legal system for this concept. Such an expression is an open clause, subject to jurisprudential and doctrinal interpretation, leaving the magistrate with the hermeneutic task of explaining the concept of public order and its scope (HC 106446, Rapporteur: Min. CÁRMEN LÚCIA, Rapporteur for Judgment: Min. DIAS TOFFOLI, First Panel, judged on 09/20/2011 ).
Patient arrested in flagrante delicto for violation of art. 33, caput, together with 40, III, of Law 11.343/2006. In order to maintain the precautionary measure, it is necessary to examine the requirements of article 312 of the CPP: Patient arrested in flagrante delicto for violating art. 33, caput, together with 40, III, of Law 11.343/2006. Precautionary restriction maintained only on the basis of legal prohibition. Need to analyze the requirements of art. 312 of the CPP. Inappropriate reasoning. Order granted, partially, pursuant to the injunction previously granted ( HC 104339, Rapporteur: Min. GILMAR MENDES, Full Court, judged on 05/10/2012).
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 ).
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 ).
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).
Use of infractions to justify preventive detention to guarantee public order: The previous practice of infractions, although it cannot be considered for purposes of recidivism or bad record, can serve to justify the maintenance of preventive detention as a guarantee of public order ( STJ, RHC 47.671-MS, Reporting Judge Gurgel de Faria, judged on 12/18/2014, DJe 2/2/2015 – Newsletter 554 ).
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 ). 312
The citation by public notice of the accused does not constitute a suitable basis for the decree of preventive detention, since its non-location does not generate presumption of escape. Source: jurisprudence in theses (STJ).
Judgments:
HC 141819/MG, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 02/12/2015, DJE 02/25/2015
RHC 044594/SP, Rel. Minister Felix Fischer, Fifth Panel, judged on 10/02/2014, DJE 11/03/2014
HC 299733/RJ, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 12/09/2014, DJE 12/19/2014
RHC 029603/MS, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 03/12/2013, DJE 07/01/2014
HC 156922/MG, Rel. Justice Haroldo Rodrigues (TJ/CE Judge), Sixth Panel, judged on 06/07/2011, DJE 06/28/2011
HC 293391/SP, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 06/10/2014, DJE 06/18/2014
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).
Judgments:
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
Generic allusions to the seriousness of the crime, public outcry or social commotion do not constitute suitable grounds for authorizing pre-trial detention. Source: jurisprudence in theses (STJ).
Judgments:
RHC 055070/MS, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/10/2015, DJE 03/25/2015
HC 311162/SP, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 03/17/2015, DJE 03/26/2015
HC 299666/SP, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 10/07/2014, DJE 10/23/2014
RHC 048058/BA, Rel. Minister Laurita Vaz, Fifth Panel, judged on 08/26/2014, DJE 09/02/2014
HC 270156/CE, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 06/03/2014, DJE 06/12/2014
RHC 035266/MG, Rel. Minister Jorge Mussi, Fifth Panel, judged on 12/17/2013, DJE 02/05/2014
HC 250207/MG, Rel. Minister Marilza Maynard (TJ/SE Judge), Fifth Panel, judged on 12/18/2012, DJE 02/01/2013
AgRg no HC 127876/MG, Rel. Minister Assusete Magalhães, Sixth Panel, judged on 12/04/2012, DJE 12/18/2012
HC 243717/BA, Rel. Justice Gilson Dipp, Fifth Panel, judged on 08/28/2012, DJE 09/05/2012
HC 180750/SP, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 05/31/2011, DJE 06/08/2011
Pretrial detention may be decreed for crimes involving domestic and family violence against women, children, adolescents, the elderly, the sick or people with disabilities, in order to guarantee the execution of urgent protective measures. Source: jurisprudence in theses (STJ).
Judgments:
HC 306070/SP, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 03/05/2015, DJE 03/12/2015
RHC 051683/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 12/18/2014, DJE 02/02/2015
HC 289286/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 10/02/2014, DJE 10/22/2014
RHC 043425/RS, Rel. Minister Laurita Vaz, Fifth Panel, judged on 03/11/2014, DJE 03/27/2014
RHC 032854/DF, Rel. Minister Marilza Maynard (TJ/SE Judge), Fifth Panel, judged on 02/19/2013, DJE 02/25/2013
HC 246481/DF, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 09/18/2012, DJE 09/21/2012
HC 220948/DF, Rel. Minister Gilson Dipp, Fifth Panel, judged on 06/26/2012, DJE 08/01/2012
Pretrial detention must be based on concrete elements that effectively justify its necessity. Source: jurisprudence in theses (STJ).
Judgments:
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
Precautionary detention can be decreed to guarantee the potentially offended public order, especially in cases of: criminal reiteration, participation in criminal organizations, concrete seriousness of the conduct, social dangerousness of the agent, or the circumstances in which the crime was committed (modus operandi) . Source: jurisprudence in theses (STJ).
Judgments:
HC 311909/CE, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 03/10/2015, DJE 03/16/2015
RHC 054750/DF, Rel. Minister Ericson Maranho (Judge summoned from the TJ/SP), Sixth Panel, judged on 03/10/2015, DJE 03/16/2015
RHC 054423/MG, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 03/10/2015, DJE 03/17/2015
RHC 053944/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 03/10/2015, DJE 03/19/2015
RHC 003660/BA, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 03/10/2015, DJE 03/20/2015
HC 312368/PR, Rel. Justice Newton Trisotto (Judge summoned from the TJ/SC), Fifth Panel, judged on 03/05/2015, DJE 03/10/2015
AgRg in HC 315281/SP, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 03/05/2015, DJE 03/12/2015
HC 311848/DF, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 03/05/2015, DJE 03/17/2015
RHC 053927/RJ, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/05/2015, DJE 03/17/2015
The second degree court cannot, in terms of habeas corpus, innovate or remedy the lack of grounds for the preventive detention decision of the singular court. Source: jurisprudence in theses (STJ).
Judgments:
HC 309740/RJ, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/19/2015, DJE 03/27/2015
HC 313156/MG, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 03/10/2015, DJE 03/17/2015
HC 306484/RJ, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 03/10/2015, DJE 03/20/2015
RHC 054180/MG, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 12/18/2014, DJE 02/04/2015
HC 292987/PA, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 11/18/2014, DJE 12/04/2014
HC 224718/SP, Rel. Minister Marilza Maynard (Court Judge summoned from the TJ/SE), Sixth Panel, judged on 08/19/2014, DJE 09/04/2014
HC 286981/MG, Rel. Minister Laurita Vaz, Fifth Panel, judged on 06/18/2014, DJE 07/01/2014
HC 276520/SP, Rel. Minister Assusete Magalhães, Sixth Panel, judged on 12/17/2013, DJE 02/13/2014
HC 200958/MG, Rel. Minister Gilson Dipp, Fifth Panel, judged on 02/14/2012, DJE 02/24/2012
Police investigations and ongoing processes, although they do not have the power to exasperate the base sentence at the time of the dosimetry of the sentence, are elements capable of demonstrating possible criminal reiteration, a sufficient basis for the decree of preventive detention. Source: jurisprudence in theses (STJ).
Judgments:
RHC 055365/CE, Rel. Minister Jorge Mussi, Fifth Panel, judged on 03/17/2015, DJE 04/06/2015
RHC 054750/DF, Rel. Minister Ericson Maranho (Judge summoned from the TJ/SP), Sixth Panel, judged on 03/10/2015, DJE 03/16/2015
RHC 052402/BA, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 12/18/2014, DJE 02/05/2015
RHC 052108/MG, Rel. Justice Newton Trisotto (Judge summoned from the TJ/SC), Fifth Panel, judged on 11/25/2014, DJE 12/01/2014
RHC 048897/MG, Rel. Justice Felix Fischer, Fifth Panel, judged on 10/02/2014, DJE 10/13/2014
HC 285466/PR, Rel. Minister Laurita Vaz, Fifth Panel, judged on 08/05/2014, DJE 08/21/2014
HC 028977/CE, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 05/13/2014, DJE 05/28/2014
HC 274203/RS, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 09/10/2013, DJE 09/16/2013
HC 220948/DF, Rel. Minister Gilson Dipp, Fifth Panel, judged on 06/26/2012, DJE 08/01/2012
Precautionary segregation is an exceptional measure, even with regard to crimes of drug trafficking and association with drug trafficking, and the procedural arrest decree requires the specification that custody meets at least one of the requirements of article 312 of the Code of Criminal Procedure. Source: jurisprudence in theses (STJ).
Judgments:
HC 312032/RS, Rel. Minister Nefi Cordeiro, Sixth Panel, judged on 03/24/2015, DJE 04/06/2015
HC 315957/SP, Rel. Minister Leopoldo de Arruda Raposo (Judge summoned from the TJ/PE), Fifth Panel, judged on 03/24/2015, DJE 04/08/2015
HC 306945/SP, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 03/24/2015, DJE 04/09/2015
HC 297656/MG, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 03/24/2015, DJE 04/09/2015
HC 309740/RJ, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/19/2015, DJE 03/27/2015
RHC 054238/DF, Rel. Minister Jorge Mussi, Fifth Panel, judged on 03/10/2015, DJE 03/19/2015
RHC 056534/BA, Rel. Minister Ericson Maranho (Judge summoned from the TJ/SP), Sixth Panel, judged on 03/10/2015, DJE 03/20/2015
HC 308158/MG, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 12/18/2014, DJE 02/04/2015
Favorable personal conditions do not guarantee the revocation of preventive detention when there are elements in the file capable of recommending the maintenance of custody. Source: jurisprudence in theses (STJ).
Judgments:
HC 299126/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 03/05/2015, DJE 03/19/2015
RHC 053347/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 02/03/2015, DJE 03/03/2015
HC 296539/SP, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 11/06/2014, DJE 11/14/2014
RHC 049951/PB, Rel. Justice Marilza Maynard (Court Judge summoned from the TJ/SE), Sixth Panel, judged on 09/04/2014, DJE 09/23/2014
HC 249479/SP, Rel. Minister Moura Ribeiro, Fifth Panel, judged on 04/01/2014, DJE 04/14/2014
RHC 039071/RJ, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 11/12/2013, DJE 03/17/2014
HC 271425/SP, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 12/05/2013, DJE 12/16/2013
HC 274882/MG, Rel. Minister Laurita Vaz, Fifth Panel, judged on 10/08/2013, DJE 10/16/2013
RHC 038304/SP, Rel. Minister Campos Marques (Judge summoned from the TJ/PR), Fifth Panel, judged on 08/06/2013, DJE 08/09/2013
HC 242947/MS, Rel. Justice Gilson Dipp, Fifth Panel, judged on 08/28/2012, DJE 09/05/2012
Monocratic Decisions
RHC 046739/MG, Rel. Minister Nefi Cordeiro, judged on 04/10/2014, Published on 04/22/2014
RHC 056233/MS, Rel. Minister Sebastião Reis Júnior, judged on 02/11/2015, Published on 02/13/2015
Situation of flagrance and determination of precautionary arrest of a parliamentarian: Present situation of flagrance and the requirements of art. 312 of the CPP, the precautionary arrest of a federal parliamentarian is appropriate ( AC 4.036 MC-REF and AC 4.039 MC-REF, rel. min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and ruling pending publication, respectively – Newsletter 809, Second Panel).
Pretrial detention is only legitimated in situations where it is the only efficient means to preserve legal values : In any situation, pretrial detention is only legitimated in situations where it is the only efficient means to preserve the legal values that criminal aims to protect ( AC 4.036 MC-REF and AC 4.039 MC-REF, rel. min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and judgment pending publication, respectively – Newsletter 809 , Second Class).
Imprisonment of parliamentarian and criminal organization: Art. 2, caput and § 1, of Law 12.850/20135, which provides for criminal organization, is capable of giving rise to the arrest of a parliamentarian under the terms of art. 53, § 2, of the Federal Constitution ( AC 4,036 MC-REF and AC 4,039 MC-REF, rel. min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and judgment pending of publication, respectively – Bulletin 809, Second Panel).
Preventive decreed only on the basis of the abstract gravity of the crime. Illegality: Pre-trial detention decreed solely on the basis of the abstract gravity of the crime or through the repetition of legal predicates and the use of rhetorical formulas that, in theory, would serve for any situation should be rejected ( HC 128.381, rel. min. Gilmar Mendes , judgment on 6/9/2015, judgment published in the DJE of 7/1/2015 – Newsletter 789, Second Panel).
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).
The possible disturbance of public order or negative repercussions in the community does not justify preventive detention: In order to justify the decree of preventive detention, it is not acceptable to abstractly invoke the possible disturbance of public order or negative repercussions in the community. Nor can one infer the possible dangerousness of the defendant from the abstract gravity of the crime ( HC 84.548, rel. orig. min. Marco Aurélio, rel. p/ o ac. min. Gilmar Mendes, judgment on 3-4-2015, judgment published in the DJE of 10-4-2015 – Newsletter 776, Plenary).
Escape from the district of guilt is a suitable justification to justify the decree of preventive custody for the convenience of criminal instruction and as a guarantee of the application of criminal law. Source: jurisprudence in theses of the STJ.
Judgments:
HC 307469/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 03/03/2015, DJE 03/23/2015
RHC 036608/BA, Rel. Minister Sebastião Reis Júnior, Sixth Panel, judged on 03/10/2015, DJE 03/20/2015
RHC 053927/RJ, Rel. Minister Felix Fischer, Fifth Panel, judged on 03/05/2015, DJE 03/17/2015
RHC 050669/RJ, Rel. Minister Gurgel de Faria, Fifth Panel, judged on 02/24/2015, DJE 03/03/2015
HC 312188/PR, Rel. Minister Maria Thereza de Assis Moura, Sixth Panel, judged on 02/24/2015, DJE 03/02/2015
RHC 053714/MG, Rel. Minister Newton Trisotto (Judge summoned from the TJ/SC), Fifth Panel, judged on 02/10/2015, DJE 02/20/2015
RHC 046036/MG, Rel. Justice Ericson Maranho (Judge summoned from the TJ/SP), Sixth Panel, judged on 12/16/2014, DJE 02/03/2015
HC 303501/MG, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 11/25/2014, DJE 12/16/2014
HC 267561/AL, Rel. Justice Marilza Maynard (TJ/SE Judge), Sixth Panel, judged on 08/19/2014, DJE 11/18/2014
RHC 052403/BA, Rel. Minister Walter de Almeida Guilherme (Judge summoned from the TJ/SP), Fifth Panel, judged on 10/23/2014, DJE 11/05/2014
Monocratic Decisions
RHC 041415/MG, Rel. Minister Regina Helena Costa, EC, judged on 06/13/2014, Published on 06/27/2014
HC 246864/MG, Rel. Minister Laurita Vaz, EC, judged on 03/24/2014, Published on 03/27/2014
See also the journals (updated to date of publication):
Jurisprudence Information No. 0509, published on December 5, 2012.
Pretrial detention conditions: Pretrial detention presupposes – in addition to proof of the existence of the crime (materiality) and sufficient evidence of authorship –, necessarily, at least one more of the following grounds, indicative of the determining reason for the precautionary measure: a) the guarantee of the public order; b) the guarantee of the economic order; c) the convenience of the criminal instruction; or d) the security of the application of the criminal law ( AC 4.036 MC-REF and AC 4.039 MC-REF, rel. min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and judgment pending publication, respectively – Bulletin 809, Second Panel).
Imprisonment of a federal parliamentarian has the nature of precautionary imprisonment for the purposes of deliberation by the legislative house: Once the factual and legal requirements have been fulfilled, the imprisonment of a federal parliamentarian has the nature of precautionary imprisonment for the purposes of deliberation by the respective legislative house ( AC 4.036 MC-REF and AC 4.039 MC-REF, rel. Min. Teori Zavascki, judgment on 11-25-2015, judgment published in the DJE of 2-29-2016 and judgment pending publication, respectively – Newsletter 809, Second Panel). 312 and rights of parliamentarians
Involvement in an infraction does not constitute grounds for pretrial detention: In criminal proceedings, the fact that the alleged perpetrator of the crime has already been involved in an offense does not constitute a suitable basis for ordering preventive detention ( HC 338.936-SP, Reporting Minister Nefi Cordeiro , judged on 12/17/2015, DJe 2/5/2016 – Newsletter n. 576 ).
The seriousness of the offense does not justify preventive detention: No matter how serious the offense found is and no matter how strong the evidence of authorship and materiality, these requirements, by themselves, are insufficient to justify preventive incarceration ( HC 132.233, rel Min. Teori Zavascki, judgment on 4/26/2016, DJE of 5/18/2016 – Bulletin 823, Second Panel).
Infraction during adolescence and preventive: The practice of an infraction during adolescence can serve as a basis for the decree of preventive detention, being essential for that purpose that the judge observes as guiding criteria: a) the particular concrete seriousness of the infraction, not it suffices to mention its equivalence to a crime abstractly considered serious; b) the temporal distance between the infraction and the crime that gave rise to the process (or police investigation) in which a decision must be made on the decree of preventive detention; and c) proof of this previous infraction, so that there are no doubts about the judicial recognition of its occurrence (STJ, RHC 63.855-MG, Rel. Min. Nefi Cordeiro, Rel. for Judgment Min. Rogerio Schietti Cruz, judged on 5/11/2016, DJe 6/13/2016 – Newsletter n. 585 ).
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).
The seriousness of the offense does not justify preventive detention: No matter how serious the offense found is and no matter how strong the evidence of authorship and materiality, these requirements, by themselves, are insufficient to justify preventive incarceration ( HC 132.233, rel Min. Teori Zavascki, judgment on 4/26/2016, DJE of 5/18/2016 – Bulletin 823, Second Panel).
Presumptions do not justify precautionary segregation: Mere presumptions based on facts relating to other accused do not prove to be suitable for maintaining the precautionary segregation of the patient ( HC 132.233, rel. min. Teori Zavascki, judgment on 4-26-2016, DJE of 18- 5-2016 – Bulletin 823, Second Panel).
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 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 ).
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 ).
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 ).
Conditions for the application of the preventive measure
Condition for the application of the preventive measure: According to article 282, paragraph 6 , preventive detention will be determined when it is not appropriate to replace it with another non-detention precautionary measure ( article 319 ). Article 310, item II says that flagrante delicto can only be converted into preventive when the requirements contained in article 312 are present , and precautionary measures other than imprisonment prove to be inadequate or insufficient.
Other conditions: Article 313 prescribes that, under the terms of article 312 of this Code, preventive detention shall be allowed: I – in intentional crimes punished with a maximum deprivation of liberty exceeding 4 (four) years; II – if he has been convicted of another intentional crime, in a final and unappealable sentence, except for the provisions of item I of the caput of article 64 of Decree-Law no. 2,848, of December 7, 1940 – Penal Code ; III – if the crime involves domestic and family violence against a woman, child, adolescent, elderly, sick or disabled person, to ensure the execution of urgent protective measures. These conditions are alternatives.
Pretrial detention may be decreed for crimes involving domestic and family violence against women, children, adolescents, the elderly, the sick or people with disabilities, in order to guarantee the execution of urgent protective measures. Source: jurisprudence in theses (STJ).
Judgments:
HC 306070/SP, Rel. Minister Rogerio Schietti Cruz, Sixth Panel, judged on 03/05/2015, DJE 03/12/2015
RHC 051683/SP, Rel. Minister Jorge Mussi, Fifth Panel, judged on 12/18/2014, DJE 02/02/2015
HC 289286/MG, Rel. Minister Felix Fischer, Fifth Panel, judged on 10/02/2014, DJE 10/22/2014
RHC 043425/RS, Rel. Minister Laurita Vaz, Fifth Panel, judged on 03/11/2014, DJE 03/27/2014
RHC 032854/DF, Rel. Minister Marilza Maynard (TJ/SE Judge), Fifth Panel, judged on 02/19/2013, DJE 02/25/2013
HC 246481/DF, Rel. Minister Marco Aurélio Bellizze, Fifth Panel, judged on 09/18/2012, DJE 09/21/2012
HC 220948/DF, Rel. Minister Gilson Dipp, Fifth Panel, judged on 06/26/2012, DJE 08/01/2012
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.
Non-compliance with non-detention personal precautionary measures and preventive term
Non-compliance with non-detaining personal precautions: In the event of non-compliance with the precautionary measures imposed (named or unnamed), the judge, at the request of the Public Ministry, the assistant or the plaintiff, may replace the measure, impose another in addition, or, as a last resort, , decree preventive detention (article 312, sole paragraph and article 282, paragraph 4). See title Non-compliance with precautionary measures and decree of preventive measures in comments on article 282, paragraph 4.
Period of duration of the preventive measure: There is no legally pre-established period. The CF, in its article 5, item LXXVIII prescribes that “all, in the judicial and administrative scope, are assured the reasonable duration of the process and the means that guarantee the celerity of its processing” . It is the constitutional principle of the reasonable duration of the process. Doctrine and jurisprudence have established that the duration of the preventive measure cannot, in theory, exceed the sum of the legal deadlines (deadlines for the parties, the judge, the court assistants). In the jury procedure, this period for the conclusion of the first phase is 90 days ( article 412 ), in the ordinary common the period to end the instruction is 60 days ( article 400) and in the summary is 30 days. Once these deadlines are exceeded, except for reasons of force majeure, there is an excess of deadline. Force majeure can be the result of several factors. It depends on the circumstances of the progress of the process, the steps taken, the number of co-defendants, the letters rogatory issued, the procedural incidents, such as the incident of mental insanity, the number of witnesses, the difficulty of locating them. The characterization of overtime is not just a matter of time. It is related not only to the need for the steps but also to who requested them. It is considered that there is an excess of time when the judge is at fault, due to his inertia in conducting the process, or when the prosecutor asks for too many diligences that do not lead to any result. On the other hand, there is no excess of time when these incidents and delaying steps are taken by the defense. In short, for the configuration of the excess of time, it is not enough that the sum of the legal deadlines of the process is exceeded. The excess depends on the examination of the specific case. The proportionality between the preventive time and the final result of the process must also be borne in mind. There is no sense in a preventive measure that lasts longer than the time that can be applied as a definitive penalty.
Excess time and precedents: Precedent 21 of the STJ prescribes : “Once the defendant has been pronounced, the allegation of the illegal constraint of imprisonment for exceeding the instruction period is overcome”. And Precedent 52 : “Once the criminal instruction is closed, the allegation of embarrassment due to excessive time is overcome”. Number 64 : “Excessive time in the investigation, caused by the defense, does not constitute an illegal constraint”. With regard to heinous crimes, STF Precedent 697 states : “The prohibition of provisional release in proceedings for heinous crimes does not prohibit the relaxation of procedural imprisonment for excessive time” (see jurisprudence subsequent to the publication of the Precedent ).
Doctrine
Guilherme Nucci : The reasonable duration of precautionary imprisonment and the effectiveness of provisional release . guilhermenucci.com.br.
Luciano Ferraz : The fundamental right to a reasonable duration of non-proceedings . Conjure
Luiz Guilherme Marinoni: Fundamental right to reasonable duration of proceedings . portal.estacio.br .
Nestor Eduardo Araruna Santiago and Ana Caroline Pinho Duarte: A concept of reasonable duration of criminal proceedings . researchgate.net.
Jurisprudence
Pre-trial detention decreed more than two years ago without any new facts supporting the exceptional measure. In the case under examination, preventive detention was decreed 2 years after the acts committed in the same period of time, without any new facts to subsidize the exceptional measure. Despite the seriousness of the criminal conduct, as a result of his work as a photographer, the appellant does not have any other investigation against him, as set out by the TJPE ( Minister Ribeiro Dantas – STJ – RHC 106817 ).
Responsibility of the accused for the delay of the instruction or of the Judiciary? It is common to attribute the cause of the excess of time in the formation of guilt to the steps required by the defense. On this subject, Minister Paulo Afonso Brum Vaz made the following critical analysis, including, in the decision, dismissing the argument that the issuance of precatorias at the request of the defender would justify the excess of time. Provocative and countermajoritarian decision. In the words of Paulo Afonso Brum Vaz: “One sees, however, with reservations some jurisprudential manifestations that tend to accommodate under the label of the principle of reasonableness situations that give rise to an excess of time that are totally unrelated to the conduct of the accused and, sometimes, founded exactly in the technical or structural deficiency of justice itself. Unjustified delay, resulting from undue delays, exceeding the legal deadlines and unforeseen stoppages in the legal procedure, either by the judge and his assistants, or by the litigants and their lawyers, including the Public Ministry or any other participant in the process. Causes external to the process, such as the excess of lawsuits for judgment, absence of judges in sufficient number and equipment necessary for the agility of the process, for example, do not justify the delay, nor validate undue delays. As for the deadlines to be obeyed in the process with an accused subject to provisional segregation, the principle of reasonableness must receive a nuanced reading by tighter assumptions. Exceeding the deadline can only be justified by circumstances that prove to be invincible to the Judiciary and to which the defense has given rise or at least contributed (HC No. 2009.04.00.019986-5 – STJ ).
Illegal embarrassment characterized by the delay in appraising habeas corpus: Proof of excessive delay in appreciating the preliminary injunction in habeas corpus filed at the Superior Court of Justice constitutes an illegal embarrassment, due to non-compliance with the constitutional norm of the reasonable duration of the process (art. 5, item LXXVIII , of the Constitution of the Republic), enabling, exceptionally, the granting of habeas corpus. 3. Granting of the ex officio order, to order the eminent Rapporteur to immediately assess the request for an injunction requested by the petitioner ( HC 103175, Rapporteur: Min. DIAS TOFFOLI, First Panel, judged on 09/21/2010 ) .
The supervenience of a condemnatory edict jeopardizes the issue related to the excess of time: The supervenience of a condemnatory edict, according to precedents, jeopardizes the issue regarding the excess of time in the conclusion of the criminal investigation ( HC 97013, Rapporteur: Min. MARCO AURÉLIO, Rapporteur( a) for Judgment: Minister DIAS TOFFOLI, First Panel, judged on 09/28/2010 ).
Excessive time and illegality of preventive detention: The Federal Supreme Court understands that the assessment of any excess time must be given in each specific case, the judge being aware of the peculiarities of the process in which he is officiating. In this case, the instrumental custody of the patients already exceeds 7 (seven) years, longer than even some of the Penal Code penalties. A lengthy period that cannot be decisively debited to the defense. 3. The gravity of the imputation does not impede the subjective right to the reasonable duration of the process – item LXXVIII of art. 5 of CF ( HC 102668, Rapporteur: Minister DIAS TOFFOLI, First Panel, judged on 10/05/2010 ).
Term of preventive detention. The seriousness of the crime does not preclude the right to a reasonable duration of the proceedings: The Federal Supreme Court understands that the assessment of any excess of time must be given in each specific case, the judge being aware of the peculiarities of the process in which he is officiating. 4. In this case, the instrumental custody of the patient has already been on the verge of 2 (two) years, without the process having validly resumed its march. Lengthy period that cannot be decisively debited to the defense. The seriousness of the increpation does not impede the subjective right to the reasonable duration of the process (item LXXVIII of art. 5 of the CF). 6. Writ not known. Order granted, however, ex officio ( HC 104667, Rapporteur: Min. DIAS TOFFOLI, First Panel, judged on 10/19/2010).
Suppression of recognized instance, however habeas corpus was granted ex officio. Deadline: Although the allegation of excessive prison term for the patient has not been submitted to the Superior Court of Justice, which prevents the matter from being heard by this Supreme Court, in view of the suppression of the instance, the case is one of granting the order of office, due to the peculiarities of the specific case. The delay in the judgment of the infringing embargoes, which, filed on 1/20/10, were only distributed to the Rapporteur on 11/8/10, reveal a patent illegal constraint, especially if we consider that the patient has a serious illness (cancer of the uterus ) and over 60 years of age, which ensures priority in all instances (art. 11 of Law No. 10,741/03 and art. 1,211-A of the Code of Civil Procedure). Habeas corpus denied; however, granted ex officio (HC 102015, Rapporteur: Min. MARCO AURÉLIO, Rapporteur for Judgment: Min. DIAS TOFFOLI, First Panel, judged on 11/09/2010 ).
Well-founded fear of committing new crimes and preventive: The well-founded fear of committing new crimes can pose a risk to public order and, consequently, legitimize the adoption of the prison measure ( HC 143.333, rel. min. Edson Fachin, DJE of 21- 3-2019 ).
