O princípio da proporcionalidade como critério de constitucionalidade do decreto e da manutenção da prisão processual

Abstract

The present dissertation treats about the application of the principle of the proportionality as a criterion of constitutionality of the procedural arrest (temporary and preventive arrest). It starts from the premise that as the rules as the constitutional principles have normative force and consequently the classical methods of interpretation – which don’t need to be despised – are no longer sufficient to resolve all the cases of collision of rights, been necessary new methods of interpretation, giving emphasis to the ponderation and to the examination of proportionality. The proportionality is the implicit constitutional principle, with application in all the branches of law, with the main purpose of impose limits to the state restrictions to fundamental rights. As the criminal law and the criminal procedure are branches of the law that seriously affects the fundamental rights, the interpreter must consider the constitutional principles and, especially, the principle of proportionality when applies the criminal procedure rules. In other words, we must verify if the restrictive act imposed with the purpose of achieve a certain end is appropriate, necessary and fair (proportionality in strict sense). In the context of the work, the restrictive act to be analyzed is the arrest before the final criminal judgment of the procedural arrest. The proposal is that, necessarily, the criminal judge makes a previous examination of the proportionality (its three elements) while deciding about the decree or maintenance of the procedural arrest.