Os parâmetros de aplicação da prisão preventiva e o princípio da homogeneidade no sistema processual penal brasileiro: uma análise com base na natureza cautelar do instituto

Abstract

In the light of the huge encumbrance provoked by the institute of the pre-trial detention on the individual fundamentals rights, mainly on yours status libetatis, this monographic work aims to analyses the legitimacy and homogeneity of the referred precautionary order, from parameters identification and examination, which should guide your application. Thereby, it was necessary the study based on a bibliographic review, through books, articles, master's dissertations and doctoral theses, in addition to research precedents and legislation to the topic. First, it is emphasized the concept of the institute of the pre-trial detention, the assessment of your legal nature e and the analysis of yours requirements, fundamentals and application cases. After, constitutionals principles are explored, as the due process of law, the presumption of innocence, the reasonable duration of the process, the proportionality and yours sub-principles (adequacy, necessity and proportionality in the strict sense), as corollaries of the principle of homogeneity of the precautionary measures and as application guidelines of the pre-trial detention. Finally, seeks to study and ascertain the need incidence of the principle of the homogeneity on the referred measure, according to some parameters, as the likely final result of the process, the period of the prison sentence applicable and as the initial prison conditions imposed by the convicting sentence. Lastly, it follows that compliance with legal and constitutionals parameters combined with the homogeneity dictates is essential to the preservation and maintenance of the cautionary finality of the institute.