A liberdade provisória no pacote anticrime : uma análise sobre a (in)constitucionalidade do Art. 310, §2º do código de processo penal

Abstract

The present study intends to address the institute of provisional freedom, considered one of the main cooperation tools to safeguard rights for civil liberties, emphasizing the innovations brought by Law No. Criminal Procedure Code. The aforementioned device prohibits the granting of provisional abstract way, based only on the criminal type or on the agent's recidivism, in a strict criminal selectivity. In order to contextualize the institute, a study of state authoritarianism was carried out, relating it to the penal system. In addition, the constitutional principles were outlined, their specific applications and conflicts with the proposed themes were analyzed, accompanied by the presentation of the institute of provisional freedom, its species and premises. Then, an analysis was carried out about the constitutionality of article 310, paragraph 2 of the Code of Criminal Procedure, in the light of constitutional principles, the accusatory system and the hierarchy of norms. Starting from a bibliographic review, using books, legislation and jurisprudence, the analysis of the object of the work demonstrated that the imposition of this device, affronts constitutional principles and offends the separation of powers. Thus, the Federal Supreme Court must declare the unconstitutionality of article 310, paragraph 2 of the Code of Criminal Procedure, for non-compliance with constitutional principles and precedents. For this, it is suggested that the Federal Council of the Order of Lawyers of Brazil, in the condition of legitimized, propose a Direct Action of Unconstitutionality.