Pre-trial incarceration in the coronavirus pandemic (Sars-CoV-2) in the jurisprudence of the Superior Tribunal de Justiça: preventive detention as the ultima ratio?

Abstract

Considering the pandemic context and the need to adopt policies to fight the dissemination of the coronavirus in prison, the National Council of Justice issued Recommendation No. 62/2020. Among the measures described there, there is the recommendation to magistrates to observe, with greater rigor, the exceptionality of preventive detention. Given this situation, this study aims to analyze the application of such a recommendation by the Judiciary in this pandemic context. Therefore, decisions issued by the Superior Court of Justice, from 01.01.2021 to 07.01.2021, are analyzed in order to answer the following question: in times of pandemic, has preventive detention been treated as an ultima ratio by the STJ? In view of the data presents by this empirical research, it is concluded that, in reality, the prison policy proposed by the CNJ has not been observed, having been verified its relativization by this Superior Court even in cases where, in theory, it would be enough the application of less burdensome precautionary measures.

Keywords
preventive detention; pandemic; exceptionality