Detração penal das medidas cautelares pessoais diversas da prisão à luz do princípio do ne bis in idem

Abstract

The possibility of criminal detention of personal precautionary measures other than prison is investigated. Law nº 12.403 of 2011, despite creating new precautions in criminal proceedings that may restrict individual freedom, did not address the possibility of removing them. Therefore, we initially seek to understand the phenomenon of criminal detention, the principle of ne bis in idem that underlies it, as well as the aforementioned precautionary measures. Subsequently, the objective is to analyze the jurisprudence of the Superior Court of Justice both on the normative force of the principle of ne bis in idem and the understanding of the aforementioned court on the possibility of withdrawing the aforementioned precautionary measures. The study was developed, in part, through extensive bibliographical research in the national academic literature, as well as through quantitative and qualitative methodology of STJ decisions. Regarding this, it is worth mentioning that the court's rulings on ne bis in idem were analyzed for 5 (five) months, as well as repetitive topic nº 1155, which dealt with the possibility of withdrawing a personal precaution other than the specific prison. In this sense, it appears that the possibilities of detraction are not only those provided for in art. 42 of the Penal Code and that personal precautions alternative to prison restrict the agent's freedom to come and go. Furthermore, it appears that the Superior Court of Justice resolves legal disputes based on ne bis in idem, as well as that the court allows the withdrawal of the precautionary measure for home confinement at night and on days off, prohibiting, however, such phenomenon as the others who have a lesser degree of restriction on freedom of movement. It is concluded, therefore, that the STJ 's understanding is not coherent, as the same grounds used by it to partially allow such a situation to occur would be the same to allow it completely. Furthermore, despite the legislative omission, it is possible to identify within the national legal system a strong basis to allow the criminal removal of the aforementioned precautionary measures. It is proposed, however, to create a law to create more proportional criteria to allow such detraction, as well as, to make up for this absence, general criteria to be standardized by the Superior Court of Justice.