Mecanismos que perpetuam a desigualdade de proteção de direitos e garantias no âmbito das prisões cautelares no Brasil

Abstract

This work has as it's object of study the mechanisms by which the stratification of the Brazilian population is operated with respect to its access to fundamental rights and guarantees in the context of the application of the precautionary prisons. The hypothesis of the research is that, although such problems are often seen as a mere product of the material inequality existing in the country, there are multiple systems installed in the structure of our society, penetrating even the legal sector, which act to maintain a separation between the levels of rights guaranteed to different social strata. To demonstrate this, the institutions of special prision, temporary arest and preventive prison were chosen as objects of this study as to observe how the rights of different groups are treated in the context of the possible deprivation of liberty of someone still presumed innocent. The research is bibliographical and documentary, analyzing statistical data, legislation, doctrine and to a lesser extent jurisprudence. Firstly, the analysis of statistical data was carried out to ascertain the existence, scale and nature of the disparity of treatment between social sectors. This research has shown that there are significant disparities in the most diverse levels of the application of the precautionary prisons and that factors such as income, education and even race can affect how these measures reach different groups. Next, we analyzed the relevant normative devices in search of elements that could lead to the selective application of these measures, including verifying the effect of legislative changes in their application. This stage revealed that there are problematic elements in the legal text, but the legislation in effect has, in most cases, little effect on how precautionary prisons are applied, since it is applied inconsistently and selectively. Finally, possible explanations were explored for the results observed in doctrinal works that offer a critical view of the interaction of law with the other structures of power of a society. The conclusion that has been reached is that recognizing the potential of the law to internalize and reproduce unjust power dynamics must be recognized so that effective measures can be taken to prevent the unequal application of devices such as precautionary prisons.