A inconstitucionalidade §2o do artigo 310 do Código de Processo Penal (incluído pela Lei 13.964 de 2019 – pacote anticrime)

Abstract

The principle of the Presumption of Innocence prevails in the Brazilian legal system, as extracted from Article 5, LVII, of the Constitution of the Federative Republic of Brazil of 1988, which ensures that no one will be found guilty before a criminal conviction is passed. The Constituent Constitution envisages such a fundamental right aimed at providing conditions so that no one would suffer the stigma of a criminal accusation beyond what is strictly necessary, having the right to prerogatives inherent in due legal process, such as the adversary, the broad defense, non-self-incrimination and, among others, of provisional freedom. Despite such a constitutional guarantee, the infraconstitutional legislator proved to be unreasonable, on several occasions, when he legislated to mitigate the granting of provisional liberty, however, in all the times that this occurred, the Federal Supreme Court declared such a rule unconstitutional.

However, in 2019, the national legislature, again, through Law 13,964 of 2019, called the Anti- crime Package, issued a legal rule suppressing the guarantee of provisional freedom in the face

of certain criminal behaviors committed, again violating constitutional provisions. In view of this context inserted by the new legal regulation, notably Article 310, §2, of the Code of Criminal Procedure, the present research proposes to explore the unconstitutionality of this device, through doctrinal, jurisprudential positions, as well as historical and social facts.