Pre-trial Detention and the Principle of Imprisonment as the “Ultima Ratio”: the Right to be Released from Prison

Pre-trial detention, considered one of the most severe forms of restriction of liberty before trial, must be applied with caution and parsimony, always respecting the principle of the presumption of innocence and the rule of liberty as a norm. Pre-trial detention should be the “ultima ratio” - the last measure to be adopted, only in situations of extreme necessity.

What is pre-trial detention?

Pre-trial detention is a preventive measure used to guarantee the smooth running of criminal proceedings. It does not serve as an early punishment, but to protect the process from risks such as the accused fleeing, destruction of evidence, threats to witnesses, among others. However, due to its exceptional nature, its application must be carefully evaluated.

Principle of “Ultima Ratio” and the Need to Respond in Freedom

The “ultima ratio” principle establishes that pre-trial detention should only be used when all other alternative measures prove insufficient. Article 319 of the Brazilian Code of Criminal Procedure provides for various precautionary measures that can be applied before resorting to pre-trial detention. These include

• Electronic monitoring;

• Handing over passports;

• Prohibition of contact with certain people;

• Periodic appearances in court;

• Suspension from public office or specific economic activities.

These measures are ways of guaranteeing the progress of the case without unnecessarily restricting the accused's freedom. It is important to emphasize that pre-trial detention should only occur in situations where there is a real and concrete risk, and not just a presumption that the accused could harm the process.

Pre-trial detention as an exceptional measure

In a Democratic State of Law, pre-trial detention should not be trivialized. The 1988 Federal Constitution enshrines the presumption of innocence, which means that anyone accused of a crime is innocent until proven guilty. For this reason, pre-trial detention should be the exception, not the rule.

However, reality often contradicts this principle. In many cases, pre-trial detention is used in an abusive or disproportionate manner, with the aim of giving an immediate response to public opinion or as a form of early punishment. This practice disrespects due process and creates a false sense of instant justice, compromising fundamental rights.

The Need to Re-evaluate the Application of Pre-trial Detention

In view of this, it is necessary to re-evaluate the application of pre-trial detention in Brazil, strengthening the legal culture of respect for due process and individual freedom. Alternative precautionary measures, such as those provided for in article 319 of the Code of Criminal Procedure, should be prioritized whenever possible, ensuring that only people who represent a real and concrete danger to society or the judicial process are deprived of their liberty before a definitive trial.

In addition, society and legal professionals must be made aware that justice is not achieved through hasty imprisonment, but through respect for constitutional rights and due process of law. Prison, being an extreme measure, must be used responsibly, restrictively and only when absolutely necessary, thus preserving the dignity of the human person and the integrity of the rule of law.

Pre-trial detention should be seen as a measure of last resort, reserved for cases in which there really is an imperative need to protect the process or society. The right to go free is not a privilege, but a fundamental right of any accused person, which must be respected until proven guilty in a regular and fair judicial process.