A garantia da ordem pública como fundamento para decretação de prisão preventiva: uma análise do artigo 312 do CPP à luz do instituto do periculum libertatis

Abstract

This work addresses the concept and foundations of preventive detention within the scope of criminal proceedings. The legal system establishes ways to apply precautionary measures, including preventive detention, during the development of the police investigation or criminal proceedings, with the purpose of guaranteeing the social and legal order and ensuring the effectiveness of criminal law. The grounds for ordering preventive detention are defined in article 312 of the Code of Criminal Procedure. These foundations include the safeguard of public order, economic order, the convenience of criminal investigation and the need to ensure the application of criminal law. It is essential to prove sufficient evidence of authorship and materiality of the crime, in addition to the danger arising from the accused's state of freedom. The work explores the concept of "guarantee of public order", which is a broad and ambiguous term in the legal context. The subjectivity in evaluating this concept, the risk of arbitrariness, the political use of preventive detention and the pressure of public opinion stand out as challenges in its practical application. The role of "periculum libertatis" in risk analysis is also discussed, considering factors such as the severity of the crime, criminal history, the possibility of obstruction of justice, among others. The importance of balancing the protection of society with the individual rights of the accused is highlighted. To improve the basis for preventive detention, criteria such as proportionality and necessity, concreteness of risks and specification of evidence are proposed. Finally, jurisprudential cases are analyzed, highlighting the evolution of legal understanding in relation to the basis for preventive detention and the need for more robust and specific criteria in its application, aligned with the principles of due legal process and the presumption of innocence.