Preliminary detention in flagrante delicto and its furthering by means of preventive detention: the impossibility of such detention without a formal request

Abstract

This article aims to foster the debate within the Study and Research Group “Criminal Sciences in Debate”, that is carried out by the Public Prosecution Service in the State of Piauí, Brazil, regarding the legislative update brought by Federal Law n. 13.964 of 2019, commonly referred to as “Anti-crime package” (pacote anticrime). One of the most relevant changes that were established by such law is the amendment of Article 311 in the Brazilian Code of Criminal Procedure, where it excluded the expression “ex officio” (de ofício) in its wording. Therefore, this caused a change in the nature of the judges’ power of arrest, as judges are now prohibited to determine preventive detention without a prior request by either the Public Prosecutors’ Office, the plaintiff with its assistant, or even by a legal claim brought by the police authority. It is also important to highlight the expansion of relevance to the actions of both the Prosecutor and Police Authority, since the role of the judge was restricted to merely establishing the detention upon a formal request of such parties in the legal procedure. Analyzing the theme, we found the majority of Brazilian
legal doctrine has a similar understanding in the sense that judges can no longer establish a preventive detention without a previous request, while such rationale has been also applied by the Brazilian Federal Supreme Court and the Superior Court of Justice, which recently analyzed the theme. In summary, as the Anticrime Act has been put into effect, the current rule corresponds to the impossibility of preventive detention without a previous request, unless in exceptional circumstances.