A tutela cautelar penal e o dever de fundamentação: uma proposta de modelo lógico-racional de decisão.

Abstract

This study aims to propose a methodological, schematic model (from an argumentative point of view), which observes logical and rational criteria, and proclaims caution, for the development of the precautionary assessment and the structuring of judicial decision. For this purpose, the provisional criminal remedy is systematically discussed, passing through its definition and, afterwards, by the characteristics, assumptions and principles common to all the provisional measures. Also, it critically exposes the judgment undertaken in the context of provisional remedy, especially regarding matters of fact, analyzing all evidentiary contexts (instructional, valuation, decision and justification), with emphasis on the latter, notably by finding correspondence in the constitutional guarantee of motivation of judicial decisions, which, in turn, presents particular contours and problems, which demand special attention. Finally, after the presentation of the main practical issues surrounding the precautionary assessment and the structuring of judicial decision, a methodological, guiding model is prescribed, that emphasized caution by arguing staggered schemes of argumentation and evolution of reasoning for the development of the precautionary assessment and of the structuring of the decision, regardless of the nature of the measure under analysis. Thus, it would allow a critical analysis of criminal precautionary decisions, rendered in any degree of jurisdiction, as there would be a simple and objective instrument, but, above all, rational, based on a procedure that cares about the correct determination of the facts, the duty of motivation imposed by the constitutional text, and the full observance of the precautionary assumptions.