Aspectos processuais do habeas corpus

Abstract

The study of the constitutional remedy that secures the citizen's right to physicalliberty, the habeas corpus, corresponds to an important way of comprehending lhe correct use of this instrument, which is capable of ceasing all constraining of liberty. lts original concept goes back to Roman times, evolving throughout the centuries according to the social circumstances of each período In Brazil, it became a part of the legislation, before the Empire, with the Philippine Laws, with the appearence of the "Jetters of insurance", which were very similar to the habeas corpus. Today it belongs to our Federal Constitution, which elevated it to the standing of basic right because of its inquestionable importance in processual penal legislation. lt has the legal nature of an action, demanding the necessary observance of its conditions. Therefore, the legitimacy of the parts is exerted, on the passive side, by that one who is the coatcor and exerts the constraining of or threat to liberty and, on the active side, by the petitioner, who can be the patient himself 01' a third party; also, the petition must be legally feasible when it deals with illegal coercion, as well as the interest in acting. The Penal Process Code establishes a roll that expresses the hypothesis of pertinence for the petitioning of this IITil, whose analysis must be in consonance with the literature and the jurisprudence. As for the processing of the IITil, its initial petition must contain ali the requisites established by the law, as well as the substantiating documentation, since, as it is an exceedingly swift procedure, it will not allow for the production of evidence. The judicial authority may require lhe conduction of the patient to its octave, as well as request further information about the coactor authority. Besides, the concession of a preliminary veredict on the habeas corpus is fitting because the damage done to the individual's liberty is irreversible in case the jurisdictional decision favoring his liberty doesn't become efective in time. Following the same principle, the jurisdictional entity might concede it ex officio. As for the possible appeals, they are prescribed in the processual penal ordinance, observing the hypothesis the laws permits, which include, even, the interposition of lhe special appeal and the extraordinary appeal.