Reiteração delitiva e prisão preventiva: análise da legitimidade do Art. 312, §3o, IV, do CPP, inserido pela Lei No 15.272/2025, à luz da presunção de inocência

Abstract

This paper aims to analyze the compatibility of the well-founded concern of criminal recidivism criterion, set forth in Article 312, §3, IV, of the Brazilian Code of Criminal Procedure, with the presumption of innocence, identifying the parameters necessary for its legitimate precautionary application. It discusses the historical conceptual indeterminacy of the guarantee of public order as grounds for pretrial detention and the changes introduced by Law No. 15,272/2025, which established, in §3 of Article 312, criteria for assessing the offender's dangerousness and, in §4 of the same article, prohibited precautionary justification based on the abstract severity of the offense. A qualitative methodology is employed, with a bibliographic, documentary, dogmatic, and analytical approach, examining criminal procedure scholarship, legislative documents related to the passage of Law No. 15,272/2025, and case law from the Superior Court of Justice (STJ) and state courts. The study indicates that the isolated invocation of ongoing police inquiries and criminal proceedings, without concrete demonstration of the link between the prior record and the risk of recidivism in the case under analysis, reproduces, under a new label, the same defect of abstract severity prohibited by §4 of Article 312, converting itself into a disguised presumption of dangerousness. It concludes that Article 312, §3, IV, allows for legitimate application insofar as three parameters are cumulatively observed: the factual credibility of the proceeding invoked, its currency, and the pertinence between prior proceedings and the current offense, under penalty of the provision operating as a shortcut to incarceration incompatible with the presumption of innocence.