Absence of time limit for preventive detention and proposal for control in light of presumption of innocence: inequivalence between sanction and procedural detention

Abstract

Brazilian legislation does not set a maximum term for preventive detention. Courts usually exercise some kind of control via fluid criteria such as proportionality and reasonableness. National legal theory, in turn, presents some possibilities of control based on the sum of procedural deadlines. The emerging issue, however, is whether indefinite preventive detention is compatible with the principle of presumption of innocence. Hence, this paper presents a notion of presumption of innocence, followed by an exposition of the positions on control of the terms of preventive detention to, finally, suggest a new criterion of control based on sufficient time fractions for regime progression, as provided for in the National Prison Law. The study was developed essentially using legal theory research and occasional contributions from International Courts (IACHR, ECHR), resorting to national case law decisions in some cases as a representative of the majority judicial understanding and behavior on certain points.