Pretrial detention, reasoning and proportionality: a proposal for the justification of judicial decisions

Abstract

The research seeks to solve the problem of the lack of an adequate model to base the decisions that deal with pretrial detentions in view of its inadequate practical application. It is used as hypothesis an argumentative model based on proportionality and presented in the form of axioms, which would be able to solve the problem of reasoning, because linked to the preservation of fundamental rights. The objective is, then, to establish a model for the foundation of court decisions dealing with precautionary arrests with a view to reducing discretion. To achieve the objective of the study, the deductive method was employed, in addition to the electronic and bibliographic research means. The research took place through general and specific doctrines on the subject, as well as scientific articles. The theoretical framework uses the doctrine of Robert Alexy, of Luigi Ferrajoli, as well as the hermeneutic critique of Lenio Streck's. It is concluded by the necessary use of proportionality from a reading of philosophical hermeneutics by the decision that decrees or maintains pretrial detentions, being always necessary to pay attention to the gravity of the imposed measure and the end that it seeks to protect. Inadequate, unnecessary or extremely serious measures must not be admitted, and the concrete circumstances of the fact must be observed, being the generic and abstract motives inadmissible.