A inconstitucionalidade da prisão temporária no Brasil: análise crítica das ações diretas de inconstitucionalidade de n. 3360/DF e 4109/DF

Abstract

Prison, especially precautionary, in a constitutional paradigm must be identified as one of the final and exceptional consequences of a redemocratized Criminal Procedural Law and will only be valid if it follows constitutional dictates. The panorama after 1988 imposes guarantor hermeneutics and the defense of freedom as the rule in the country. Therefore, each and every prison must go through a rigorous review in which the limitations to its application, given its harmfulness to the dignity of the human person, must be a central point. More than that, in some cases, certain prisons, released or inspired by the period of the Military Dictatorship, must be problematized by the need to take the paradigm of the Democratic Rule of Law seriously. In this sense, the central theme of this research is to analyze temporary imprisonment, in its history, application and validity, especially after the Federal Supreme Court, due to the direct actions of unconstitutionality of n. 3360/DF and no. 4.109/DF consider it constitutional. The research seeks to problematize this decision, which, although it has brought strict requirements for the application of the indicated precautionary arrest, does not consider that this, according to the hypothesis that will be defended, is unconstitutional in its formal and material scope and, according to the primacies of criminal guarantees, is incompatible with the paradigm adopted by the Brazilian legal system. In this sense, the problem theme reflects the need to identify that the Supreme Court's decision defending the constitutionality of temporary imprisonment must be rethought. The justification for the research is faced with the need to establish a hermeneutical basis whose orientation is historicized and constitutionalized. Therefore, based on a qualitative methodology, based on a bibliographic review about the institute, with an emphasis on the guarantor approach (which constitutes our theoretical framework), we seek to analyze the application of criminal procedural provisions and provisions relating to temporary imprisonment in our constitutional order.