PREVENTIVE DETENTION AND ITS LIMITS: AN ANALYSIS OF THE EXCEPTIONAL NATURE OF PRECAUTIONARY MEASURES AND THE DOGMATIC CRITERIA OF REASONABLENESS FOR CONTROLLING EXCESSIVE DELAYS IN HABEAS CORPUS PROCEEDINGS

Abstract

This study deeply analyzes pretrial detention (prisão preventiva) under the Brazilian legal system, exploring the fundamental tension between the state's punitive power and the constitutional guarantee of the presumption of innocence. It argues that the intrinsically provisional nature of the precautionary custody imposes rigorous temporal limits, especially in light of the fundamental right to the reasonable duration of the judicial process. Given the absence of fixed legal deadlines for pretrial detention, the focus lies on the dogmatic and jurisprudential construction of the concept of excessive duration (excesso de prazo), which moves away from arithmetic formulas in favor of a contextualized judgment of proportionality. The analysis details the reasonableness criteria established by higher courts—complexity of the case, diligence of the parties, and, above all, the expeditious action of the Judiciary and the Public Prosecutor's Office—demonstrating that state inaction violates the provisional nature of the measure and the principle of human dignity. The work further examines the irreplaceable role of Habeas Corpus as an immediate corrective instrument against illegal coercion and addresses the implications of Law No. 13.964/2019 ("Anti-Crime Package"), which, by instituting the mandatory and periodic (nonagesimal) review of the grounds for detention, created a formal temporal control benchmark, reinforcing the exceptional nature of the measure. It is concluded that the assessment of excessive duration is essential to maintain the legitimacy of procedural detention, ensuring that it does not become an unconstitutional anticipation of the definitive sentence.