For a proper instrumentality for precautionary procedures in the criminal process

Abstract

Piero Calamandrei systematized precautionary measures for Civil Procedure. Since then, these measures have been applied in the criminal process, maintaining their civil characteristics, that is, protection of the process, through an instrumentality. However, the 1988 Constitution, founded under the democratic mantle, established the principle of presumption of innocence, which makes it impossible to anticipate the sentence. Thus, supported by positive law and specialized literature, we seek to understand the adequacy of the precautionary measure, preventive detention, to the principle of presumption of innocence under the mantle of the 1988 Constitution. It is understood that, from the perspective of a constitutional model of process, aimed at guaranteeing fundamental rights, preventive detention, as a concrete precautionary measure, cannot be based on guaranteeing the application of criminal law and guaranteeing public order. In this sense, an instrumentality specific to a democratic criminal process is sought, based on contradiction as an element for the implementation of democracy and  liberty.