A decretação da prisão preventiva como garantia da credibilidade da justiça: uma análise da abrangência do conceito de ordem pública

Abstract

The liberty is a citizen's fundamental right and should be guaranteed to its plenitude. However, the law and the Federal Constitution admit the possibility of restricting it, whether in the name of the greater good. Nonetheless, to ponder which fundamental right would be more valuable than the liberty is not an easy work. This reflection seems even more inglorious when we deal with the precautionary arrest, more specifically the preventive arrest, which is provided in order to ensure the effectiveness of the jurisdictional tutelage. Therefore, the law provides extremely exceptional circumstances for adjudication of preventive arrest, in order to make it clear in which situations it is appropriate. Yet, the legislator failed in his task by using the legal term "guarantee of public order" as the foundation for such a rigid measure. Hence, the jurisprudence has been utilizing this procedural tool in an unfounded way, often even arbitrary, shunning the purpose for which it was created. One of these ways is the preventive prison adjudication as guarantee of justice credibility, a foundation considered even for superior courts as a reasonable unrolling for the legal hypotheses of the prison as guarantee of public order. Thus, this study aims to analyze the proportionality and the constitutionality of such foundation, by relying in renowned scholars and analyzing the legal system as a whole.