Incompatibilidade do regime semiaberto com a prisão temporária

Abstract

This paper analyzes the incompatibility between the semi-open regime and pre-trial detention in light of the constitutional principle of the presumption of innocence and the limits imposed on the State’s punitive power. The study is based on the premise that pre-trial detention, as a precautionary and exceptional measure, aims to ensure the proper progress of the criminal process, not to anticipate the execution of the sentence. Accordingly, it examines whether it is constitutionally admissible to maintain pre-trial detention when the conviction determines a semi-open initial regime, as well as the possibility of adapting the preventive custody conditions to that regime. Through doctrinal analysis, and through decisions of the Supreme Federal Court and the Superior Court of Justice, the study concludes that such practices constitute an undue anticipation of punishment and a violation of the principles of presumption of innocence, proportionality, and the exceptional nature of pre-trial detention. Furthermore, adapting pre trial detention to the semi-open regime lacks legal support and contradicts its own purpose, as it empties the preventive nature of the measure and converts it into a provisional execution of the sentence. Therefore, the research reaffirms that pre-trial detention and the semi-open regime have distinct legal natures and purposes, being constitutionally and legally incompatible, under penalty of violating fundamental rights and guarantees provided by the 1988 Federal Constitution.