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2nd Chamber recognizes the impossibility of pre-trial detention without a request from the Public Prosecutor' Office or the Judiciary Police

10/08/2020

The Second Chamber of the Brazilian Federal Supreme Court, in a unanimous judgment, granted Habeas Corpus (HC) 188.888/MG, with Justice Celso de Mello as rapporteur. In his vote, the Justice stated that any person arrested in the act has the public right to a custody hearing without delay, which can be carried out, in exceptional situations, using the videoconference system, under penalty of not being arrested in flagrante.

Justice Celso de Mello also signed the understanding, in his vote, that the competent magistrate cannot convert, ex officio, the arrest in flagrante into pre-trial detention in the context of the custody hearing, since such conversion measure depends, necessarily, on representation of the police authority or on a request from the Public Prosecutor's Office.

In the same trial, also by unanimous vote, it was recognized the legal impossibility for the magistrate, even outside the custody hearing context, to decree, ex officio, the preventive detention of any person submitted to acts of criminal prosecution (police investigation, criminal investigation procedure or judicial process), "in view of the innovations introduced in this matter by the very recent Law 13. 964/2019 ("Anti-Crime Law"), which gave particular emphasis to the accusatory system adopted by the Constitution, denying the Judge jurisdiction for the imposition, ex officio, of this type of precautionary deprivation of individual freedom of the citizen (CPP, art. 282, §§ 2 and 4, c/c art. 311)", according to the vote of the rapporteur.

Read the entire report and vote of Justice Celso de Mello.

//GCM

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