O novo regime da prisão cautelar preventiva como medida de ultima ratio: uma análise à luz do garantismo penal

Abstract

Based on the General Theory of the Penal Guarantee, and in particular, on the doctrine of Luigi Ferrajoli, the goal of this research is to recognize the adoption of a guarantist profile of Law 12.403/11, which establishes the new system of precautionary detention, with special focus on precautionary preventive detention and the possibility of its being replaced by alternative measures. Precautionary preventive detention, a horrendous legacy from the history of Law and the Penal Process, which is based in authoritarian and selective practices, should, according to the new law, be applicable only in extreme cases, establishing a maximum Penal Law and with maximum security for the citizen. Under the mantle of the guarantist paradigm, and attributing greater power to the Constitution, which should regulate and filter all lesser rules, with maximum respect for the principles of protection of the basic rights and guarantees of all citizens, our intention is to establish the idea that the less the State power, the greater the citizen s right. Based on this analysis, and together with a reading of a model of State that presents itself as democratic state and with a rule of law nature, we can conclude that the Theory of the Penal Guarantee is present in the adoption of the Law 12,403/11, especially when detention is established as a measure of last ratio. This Dissertation is part of the line of research Constitutionalism and the Production of Law . The inductive method was used in the investigative phase, and the research techniques used were reference, category, operational concepts, bibliographic research and note taking.