Prisão preventiva e vedação à proteção deficiente do estado: uma análise da jurisprudência do TJCE

Abstract

This work seeks to analyze the decisions of the Court of Justice of the State of Ceará that make use of the principle of prohibition of insufficient protection by the State in order to maintain the preventive detention of defendants of proven dangerousness, despite recognizing the unjustified excess of time. Thus, the study explores the institute of pre-trial detention and the principle of prohibition of insufficiency, in order to assess the legitimacy and proportionality of the measure taken in the referred decisions, which is accomplished by examining the adequacy, necessity and proportionality in the strict sense. Based on this, the research shows that there was innovation by the court regarding the application of the principle in the criminal area, and concluded that the measure was illegitimate, since it has no legal base at the juridical order, being equivalent to the mere prevalence of the preventive detention requisites over the constitutional guarantee destined to combat its abuse by the State. In the end, the study verifies the unnecessity of the maintenance of pre-trial detention in view of the existence of several precautionary measures different from the prison, capable of reconciling the conflict between prohibition of excess and prohibition of insufficiency, concluding that the measure is disproportionate, especially when the advantages of its purpose are weighed with the restriction on individual guarantees that it causes.