Prisão preventiva: a impossibilidade de se justificar o cárcere preventivo perante o estado democrático de direito e garantismo real

Abstract

With the arrival of the iluminism ideals a series of guarantees are claimed against Govern opression. The Democratic State of Right is pointed as a model of a state to be followed. Amongst the rights that risen from this ideals are the innocence presumption and the right to be considered guilty only when submitted to a due process of law. Both of the statements are written on the Brazilian Constitucion of 1988. Claiming that the criminal law must be submitted to those pointed guarantees emerges a group of theories that propose to
limit, reduce or even extinguish the actual punitive system. Garantism, minimalism and abolitionism represents that groups. On the other hand, searching for the achievement of the judicial procedural effectiveness there’s a series of institutes of precaution. In case of criminal procedural this institutes sometimes are the preventive prison, as a specie of precaution prison. This work resumes the ideals of garantism and minimalism to affirm that no prison before definite judgement can be justified without disobeying several constitucional guarantees.