Preventive detention, while uncommon, is a significant and contentious precautionary action in legal processes, leading to discussions due to its frequent application and potential challenges to the presumption of innocence principle.
Criminal attorneys must understand the legal nuances of pretrial detention to formulate strong defense arguments and ensure compliance with constitutional and legal boundaries.
This article provides information on the conditions for preventive detention following the Anticrime Package (Law 13,964/2019) and the lawyer’s role in challenging this extraordinary measure. Join us!
Guide on Enhancing Your Legal Action
Prison for prevention purposes
The imposition of preventive detention requires the concurrent existence of two essential conditions:
- Food of the Crime
It pertains to having enough evidence of who authored the crime and proving the materiality of the crime.
Article 312 of the CPP states that there must be specific evidence indicating the commission of a criminal offense.
Law 13,964/2019 brought about a major change by adding §2 to Article 312, emphasizing that the decision for pretrial detention should be based on justifiable reasons related to danger and recent facts.
- Peril of Freedom
It refers to the specific danger posed by the defendant’s freedom to the legal proceedings or society.
This idea becomes evident in the hypotheses specifically outlined in Article 312 of the CPP.
Public order guarantee is about preventing the individual from committing further crimes based on their specific dangerous behavior, as seen in the way they commit crimes or the seriousness of their actions. The Supreme Court and the STJ require specific justifications for invoking public order, rather than generic claims.
The guarantee of economic order aims to stop individuals from committing offenses that disrupt the economy, such as money laundering and violations against the financial system.
It aims to guarantee the gathering of evidence by preventing the accused from intimidating witnesses, tampering with evidence, or obstructing the legal process.
It is intended to make sure that the accused follows the punishment given if found guilty, to prevent any potential escape.
The Anticrime Package explicitly incorporated into the legislation the authorization for the use of preventive detention as a form of anticipatory punishment, in line with established judicial interpretations.
Legitimacy to Demand Pretrial Detention
Preventive detention can be ordered in accordance with Article 311 of the Criminal Procedure Code, as provided for in Law 13,964/2019.
- The Public Prosecutor’s request.
- The demand made by the accuser or the assistant prosecutor.
- The police authority’s representation.
The Anticrime Package brought a notable change by eliminating the option for judges to order preventive detention during the investigation phase.
Currently, in the midst of a police inquiry, the judge can only order pretrial detention if it is requested.
In the procedural phase, the judge is no longer able to order pretrial detention, as stipulated by Article 311 of the CPP, in accordance with the wording of Law No. 13,964/2019.
The law does not explicitly forbid the decree of office as a precautionary measure, but higher court rulings have limited this possibility in line with the accusative system principle.
Criminal Appeal: Time Limits and Criminal Procedure Code
Admissibility of Pretrial Detention
The CPP, in article 313, sets out specific criteria for the admissibility of pretrial detention in addition to general assumptions.
- Serious offenses are penalized with a maximum of four years of private imprisonment.
- Agent with a history of repeated criminal offenses.
- To address crimes of domestic and family violence against vulnerable individuals, immediate protective actions must be taken.
- Uncertainty regarding the individual’s civil identity or insufficient information provided to clarify it.
Even with the presentation of these admissibility hypotheses, it is crucial to emphasize that pretrial detention can only be ordered if the conditions outlined in Article 312 of the Criminal Procedure Code are met.
Decision to impose pre-trial detention being upheld
The ruling for preventive detention must be specifically and individually justified, showing the existence of legal requirements and conditions for its admissibility.
Article 315 of the CPP, part of Law 13,964/2019, provided important guidelines for making decisions by specifying what should not be considered as a basis for the decision.
- To restrict the use of the rule without connecting it to a specific situation.
- Use vague legal concepts without clarifying the specific reason for their application.
- Call for explanations that could support an alternative choice.
- Not all arguments presented by the defense can undermine the judge’s decision.
- It will only be based on previous decisions or a brief statement without specifying the reasons or showing how the current case aligns with those reasons.
- Do not blindly follow previous decisions or arguments made by the party without showing that there is a difference in the current case or providing a new perspective.
The specific reasons provide further support for the unique nature of pretrial detention and require the judge to prove the necessity of the measure based on specific evidence in each case.
Preventive detention length and regular review intervals.
The Anticrime Package included a significant change, which was the explicit requirement for regular reviews to determine the necessity of maintaining preventive prison measures.
Decided the pretrial detention, the governing body must reassess its necessity every 90 days to avoid it being considered illegal.
The device does not specify a maximum duration for preventive imprisonment, but higher court rulings suggest that it should be reasonable and not last indefinitely.
Replacement for Home Imprisonment
The CPP allows for the replacement of pretrial detention with house arrest in certain cases under Article 318.
Since Law 13,769/2018 came into effect, Article 318-A in the CPP mandates substitution for pregnant women, mothers, children, individuals with disabilities, and pregnant women under certain conditions.
- Have not engaged in a violent or serious threat crime against a person.
- He did not commit an offense towards his child or dependent.
Article 318 of the CPP allows for substitution for individuals aged 80 and over who are severely weakened due to a serious illness, necessary for the special care of children under 6 years old or with disabilities, or pregnant women with high-risk pregnancies, in addition to the mentioned hypotheses.
In March 2020, the STF granted a collective habeas corpus to specify the use of house arrest for mothers, pregnant women, and individuals with disabilities during the COVID-19 pandemic, emphasizing the rare occurrence of pretrial detention for these vulnerable groups.
The Advocate’s Role in Challenging Preventive Detention
The attorney has a crucial role in safeguarding the rights of the detained individual. They need to plan their actions strategically, considering different ways to challenge the preventive detention.
The lawyer in this situation has several key responsibilities.
During the phase of ordering preventive detention.
- When feasible, it is advisable to provide a logical argument opposing the request for pretrial detention by showing the absence of legal grounds or insufficiency of alternative precautionary measures.
- To examine if the court ruling aligns with the criteria outlined in Article 315, §2 of the CPP, checking for any generalizations or abstractions that do not match the exceptional nature of the decision.
- Monitoring of deadlines and forms verification: Ensuring adherence to legal timelines and requirements, from communication within the prison to conducting the custody hearing.
During the Custody Hearing
- To provide coherent arguments opposing the transformation of prisons into mere deterrents, focusing on the lack of the presuppositions outlined in article 312 of the Criminal Procedure Code.
- Proposal for Alternative Measures: recommending the implementation of different precautionary measures in place of imprisonment (Art. 319, CPP), to show their appropriateness and effectiveness in the specific situation.
- Identifying and highlighting any illegal activities that may have taken place in prisons, such as abuse of power, torture, or inhumane treatment.
After the declaration of pretrial detention
- To request the cancellation of preventive detention based on Article 316 of the CPP by demonstrating the absence of the original reasons for its imposition.
- To file a habeas corpus is to challenge the legality of detention, particularly in cases of missing justification, absence of legal grounds, prolonged detention, or violation of legal provisions.
- Lack of logical thinking;
- Absence of legal presumptions;
- Too much time;
- Violation of Article 316, single paragraph, of the CPP (reviewed every 90 days).
- Request the substitution of preventive detention with house arrest, as allowed by Articles 318 and 318-A of the Criminal Procedure Code.
- Appeal under Article 581, V, of the Criminal Procedure Code against the decision to impose or deny pretrial detention or to reject the motion for reconsideration or substitution.
- Monitoring the review deadline ensures that the necessity for preventive prison maintenance is assessed within 90 days, with immediate release necessary if the deadline is not met.
- Lack of logic;
- Insufficient legal premises;
- Too much time.
- Violation of Article 316, paragraph 1, of the CPP (requiring revision every 90 days).
Argumentative Techniques
- Deconstructing the Foundations of Prisons involves questioning the validity of reasons for preventive imprisonment, showing their lack of adequacy.
- Emphasize positive personal factors for the Defendant, like being a first-time offender, having a clean record, a stable home, and a legal job.
- To discuss the imbalance of pretrial detention, particularly in cases of non-violent crimes or when the potential sentence does not warrant imprisonment.
- Judges who are supportive tend to refer to previous decisions made by higher courts that support the argument for defense, particularly regarding the exceptional nature of pretrial detention and the requirement for specific justifications.
Lawyers’ focus areas for Preventive Detention
Below are the key points that should be focused on to improve your defense.
General Foundation
Lawyers need to pay close attention to challenging the vague basis in decisions to order pretrial detention.
Argue against basic principles like “ensuring public order” or “severity of the crime”, challenge claims lacking specific evidence of danger to society.
Deadline Excess
The STJ has established that the duration of preventive imprisonment should be assessed based on reasonableness, taking into account the specific circumstances of each case, even though there is no set deadline for it.
The attorney needs to consistently oversee the procedural advancement, recognizing any unwarranted delays.
Various Methods to Control Prisons
The lawyer needs to consider replacing pretrial detention with different precautionary measures outlined in Article 319 of the CPP, showing that they are suitable and sufficient for the specific situation.
Law 13,964/2019 emphasized the limited nature of preventive detention, specifying that it should not be ordered if a less severe precautionary measure can be applied (Article 282, §6, CPP).
Residence confinement for vulnerable populations.
The attorney needs to consider the option of replacing pretrial detention with house arrest, particularly for at-risk individuals like pregnant women, mothers of young children, and individuals with disabilities.
The protection of these groups has progressed greatly in caselaw, as shown in the case HC 143.641/SP, decided by the Supreme Court.
The Significance of a Skillful and Tactical Defense in Preventive Detention
Preventive detention, as an extraordinary precautionary step, necessitates a tactical and strategic approach informed by an understanding of legal criteria and judicial interpretations.
In this situation, the lawyer’s role goes beyond just providing formal defense and involves taking an assertive approach to ensure that all constitutional and legal rights given to the defendant are upheld.
Preventive detention should be considered an extraordinary measure in line with the constitutional principle of the presumption of innocence.
In this situation, a strong technical defense can be crucial in showing that the necessary justifications for its declaration are not present.
It is advisable for the lawyer to strategically approach the case, focusing on both legal and tactical aspects. To do so effectively, the professional should prepare legal documents that clearly present the necessary legal elements and justification.
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What are the two basic assumptions necessary for ordering preventive detention?
Preventive detention can be ordered only when there is ample evidence of the crime and authorship, as well as a specific risk posed by the accused’s freedom to the legal process or society.
What were the primary modifications brought by the Anticrime Package (Law 13,964/2019) regarding pretrial detention?
The Anticrime Package (Law 13,964/2019) made significant changes to preventive detention. These changes include requiring decisions to be based on specific dangerous circumstances and new evidence, limiting the use of preventive detention as a penalty anticipation, eliminating the judge’s authority to order preventive detention during investigations or trials, setting clear guidelines for decision-making, and mandating periodic reviews of the need for preventive detention every 90 days.
What does the concept of “public order guarantee” represent in the context of preventive detention and how is it defined?
The concept of “ensuring public order” is a key element of the risk of liberation as outlined in Article 312 of the CPP. This pertains to the necessity of stopping the individual from committing further crimes. Judicial decisions have connected this principle to the specific danger posed by the individual, which can be demonstrated by factors such as the method of committing the crime, repeated criminal behavior, and the seriousness of the actions.
Who has the authority to seek pretrial detention following the modifications of the Anticrime Package?
Following the amendments introduced by the Anticrime Package (Law 13,964/2019), under Article 311 of the CPP, detention before trial can be ordered by the Public Prosecutor, the complainant or assistant prosecution, or upon the police authority’s representation.
What is the likelihood of the admissibility of pretrial detention as stated in Article 313 of the CPP?
Article 313 of the Criminal Procedure Code outlines specific criteria for the admissibility of preventive detention, which include certain types of crimes, repeat offenders, and cases involving violence against vulnerable groups. It is important to highlight that even if these conditions are met, preventive detention can only be ordered if the criteria of Article 312 of the Criminal Procedure Code are also fulfilled.
What conditions must be met for a pretrial detention order to be considered valid under Article 315(2) of the Criminal Procedure Code (CPP)?
According to Article 315, Paragraph 2 of the Criminal Procedure Code, as amended by Law 13,964/2019, a decision is considered inadequate if it fails to: – Specify how the legal provision applies to the specific case; – Define unclear legal terms without explaining how they apply to the case; – Provide sufficient justification for the decision; – Address all defense arguments that could challenge the judge’s conclusion; – Simply reference prior decisions without explaining their relevance to the current case; – Disregard prior decisions without clarifying any differences in the current case.
How does the preventive imprisonment periodic review system introduced by the Anticrime Package operate?
The Anticrime Package introduced a provision in Article 316 of the CPP which requires a periodic reassessment of the justification for preventive detention every 90 days to prevent its illegality.
What distinguishes the core principles of “convenience in criminal law” from “guaranteeing the enforcement of criminal law”?
The two main principles are the precautionary hypotheses provided for in Article 312 of the CPP, each serving distinct purposes: one is to safeguard the gathering of evidence during the investigative phase, while the other ensures compliance with the imposed penalty in case of conviction. It is frequently applied in situations involving potential evidence tampering, defendant’s absence at a fixed address, or indications of intent to evade the consequences of the sentence.
Is there a limit on how long preventive detention can last in the Brazilian legal system?
The legal system in Brazil does not set a specific time limit for preventive detention. Instead, higher courts have ruled that it should be reasonable and not prolonged indefinitely, taking into account factors such as the complexity of the case and the behavior of the parties involved.
How did the Anticrime Package help reinforce the accusatory system in the Brazilian criminal process regarding precautionary measures?
The Anticrime Package enhanced the accusatory system in the Brazilian criminal process by limiting the judge’s authority to order pretrial detention, requiring decisions to be based on specific risks and new evidence, discouraging the use of pretrial imprisonment as a substitute for punishment, setting stricter criteria for decision-making, and mandating regular reviews of the necessity for detention every 90 days.
