THE DUTY OF REASONING UNDER ARTICLE 315 OF THE BRAZILIAN CODE OF CRIMINAL PROCEDURE AND THE (UN)CONSTITUTIONALITY OF PREVENTIVE DETENTION BASED SOLELY ON THE GUARANTEE OF PUBLIC ORDER

Abstract

This paper analyzes the (un)constitutionality of preventive detention based solely on the guarantee of public order, according to the duty of reasoning set forth in Article 315 of the Brazilian Code of Criminal Procedure. The research is guided by the question of whether such justification, when not supported by concrete and current elements, is compatible with the constitutional principles of due process, adversarial proceedings, and the presumption of innocence. The chosen hypothesis asserts that, in many cases, preventive detention based only on this ground entails a reasoning defect, as it relies on indeterminate legal concepts that do not adequately justify such a severe measure. The relevance of the study stems from the observation that this practice undermines strict legality, distorts the accusatory criminal process, and reinforces symbolic penal responses. The methodology applied was qualitative and exploratory, based on a literature review, jurisprudential analysis of rulings by the Brazilian Supreme Court and Superior Court of Justice, and an examination of procedural rules, especially following the reform introduced by Law No. 13.964/2019. It was concluded that the isolated and generic use of the expression "guarantee of public order" violates Article 315, paragraph 2, of the Code of Criminal Procedure and Article 93, item IX, of the Federal Constitution, making it mandatory for judges to justify preventive detention based on specific and contemporary facts, under penalty of nullity.