THE (IN)COMPATIBILITY OF THE SEMI-OPEN REGIME AND PREVENTIVE DETENTION IN THE LIGHT OF THE SUPERIOR COURTS

Abstract

This scientific article deals with the existence of two criminal procedural institutes of the Brazilian legal system, which are the prison in the preventive modality and the fulfillment of sentence under the semi-open regime, focusing on the discussion about the joint incidence of both. Thus, the analysis in comment will be guided by the questioning whether it would be possible, in view of the analysis of the Superior Courts, of the cumulativity between pretrial detention and the execution of sentence under the semi-open regime. With this, in general, the research will seek to discuss about both institutes in the light of the Federal Supreme Court – FSC and the Superior Court of Justice – SCJ and, in a more targeted way, sought to analyze the conceptual aspect and legal nature of the institutes in question, to better elucidate the discussion about their possibility or not of practical cumulation. To achieve a successful discussion, the research in comment, in a methodological way, is based on a bibliographic, documentary research, with study of doctrine and other scientific articles specialized in the subject of the theme, as well as analysis of the national legislation and jurisprudence of the Superior Courts, so from general premises to reach more specific aspects,  with clear deductive technique of study. Thus, the work is structured in four parts, which are the institute of pretrial detention as a procedural instrument, the analysis of the penalty regimes in Brazil, focusing on the semi-open regime, moving on to the analysis of the cumulativity of these two institutes by the STF and STJ.