Presunção de inocência e prisão preventiva: uma análise da antecipação da pena no processo penal contemporâneo

Abstract

This article examines the structural tension between the constitutional principle of the presumption of innocence and the pragmatic expansion of pretrial detention in contemporary criminal proceedings, taking as its research problem the recurring conversion of an exceptional precautionary measure into a functional mechanism of punitive anticipation. It begins with the question of how the decisional rationale behind pretrial detention orders, especially when based on generic arguments of public order, has contributed to the erosion of the presumption of innocence and the normalization of premature restrictions on liberty. The general objective is to critically analyze the normative, dogmatic, and jurisprudential foundations that allow for the teleological distortion of pretrial detention in a scenario of precautionary hypertrophy. Methodologically, a qualitative approach of a legal-dogmatic and critical-bibliographical nature is adopted, examining the 1988 Federal Constitution, the Code of Criminal Procedure, the jurisprudence of the Supreme Federal Court, and contemporary doctrinal production on legal guarantees, precautionary measures, and due process. The results indicate that, although Brazilian law conditions pretrial detention on the concrete demonstration of the requirements of Article 312 of the Code of Criminal Procedure, judicial practice frequently employs stereotypical formulas and abstract prospective judgments, converting procedural risk into a veiled presumption of guilt. It is concluded that this deviation compromises the epistemic legitimacy of criminal jurisdiction, weakens due process, and reintroduces, under the guise of precautionary measures, a logic of punishment without a final conviction, incompatible with the constitutional centrality of res judicata.