O direito de liberdade na detenção em flagrante: a concessão da liberdade no âmbito dos crimes inafiançáveis

Abstract

The right to freedom of movement can be mitigated during the criminal prosecution and is protected by the constitutional principles of the presumption of innocence and presumption of not guilty. Among the forms of mitigation of freedom, we have the precautionary prisons aimed at the protection of society, investigations and enforcement of criminal law, having no intention to punish the agent. In the original redaction of the Criminal Procedure Code, the arrest in flagrante was one of the hypotheses of precautionary prison, however, in the current system so flagrant is not a prison but a detention, it is no longer possible to maintain the prison only have been the capture in flagrant situation. Therefore, the provisional detention of species are preventive detention, and has the greatest application, and the temporary detention. Furthermore, Law no. 12,403/11 brought the various precautionary measures of the prison, which aim to remedy the danger caused by the freedom of the individual, not to keep it stuck. So, actually the provisional release should be applied as a rule, should the precautionary measures have precedence over the precautionary prison. One such protective measures is to provide the guarantee, that the original wording of the Criminal Procedure Code was the only way to obtain freedom in case of arrest in flagrant. However, some crimes do not admit their provision, being called unbailable crimes, which are provided for in the Constitution of 1988. This rule was intended to give more serious treatment to certain crimes. However there is no reason to keep what does not admit bail before the current law, which does not allow more than the bail is an essential requirement for granting provisional release. Thus, we have a contradiction in our legal system, since the bail may be imposed for minor crimes, but there can be no application to more serious crimes. For the resolution of this issue will require a constitutional amendment to repeal the articles dealing with what does not admit bail, or creating a new protective measure applied only to unbailable crimes.