TO JUSTIFY a favorable position to the so-called special detention, it should be clarified what are the types of detention existing in the Brazilian legal system. Procedural system basically comprises two types of prison: provisional or temporary and that resulted from judgment against plaintiff. The provisional is applied prior the conviction becomes final and unappealable decision, that is, while the Judiciary Branch does not make a definitive expression concerning the innocence or guilty of the accused. In Brazil, by constitutional force, it is only considered guilty that one convicted by definitive sentence.
Thus, lawmaker allows that, in exceptional circumstances, the one accused of committing a crime remains in the prison before the definition concerning its innocence. For such, accused´s freedom should represent a concrete threat to society or to the case. It is intended, on a precautionary basis, for example, a person, released, will probably recidivate in the criminal conduct or threat a witness, putting the case at risk. Freedom, before the final sentence, is rule, and it can be moved away based on concrete facts.
Such explanation demonstrates to be necessary, even to understand the reason for which our courts, repeatedly, release accused arrested provisionally: usually there is no concrete reason that justifies exception. It should be clarified that the special prison is of provisional nature, that is, it is applied only to accused. It refers to institute established since 1937, once that in 1841, lawmaker already recommended the segregation of prisoners before the charge and the classification thereof “by genders, ages, morality and conditions”. As Assis Toledo used to say, “it is tradition of the Brazilian law and has justification and the very reason in the fundamental rights and guarantees of the human being”.
Usually it is said that such prison represents an unreasonable privilege and affronts the constitutional provision, according to which everyone has equal protection under the law. It is true that everyone is equal, but it is also certain that even the equal ones have different life histories, ultimate by virtue of their professional experience, which justifies the right to distinction. Judges, prosecutors, lawyers, professors, polices, among others have this right. Or will be reasonable that a judge, before being definitely convicted, must live together with criminals eventually convicted by him?
It is also criticized the reason he is exclusively Brazilian. Those based on this thesis forget that the conditions of the cruel Brazilian prison system are also exceptional: several individuals in the same prison cell, under unhealthy conditions, with rotation to sleep due to the lack of space, in non-compliance with all ordinances set forth by the sentence execution act.
In times of spectacular operations, this discussion returns, in view of the undisguised willing of applying the presumption of guilty, even before the case starts, once prisoners are filmed and photographed in handcuffs, as they were criminal and guilty.
Remember that special prison is not so special like that. Currently, in Brazil, it concerns to a “place different from the common prison”. We do not have different places; because it refers to prison cell separated from the other prisoners, but always under unhealthy and inhuman conditions. Anyway, it does not consider it a privilege, according to renowned Brazilian judges (Espínola Filho, Basileu Garcia, Francisco de Assis Toledo, Tourinho Filho), but a justified and reasonable measure.
The best would be a campaign to improve the conditions of prisons, in order to recover the prisoners. Unfortunately, such pretension causes real repugnance, in part by the society, which understands to be an absurd to spend money with whom breaches the laws (or with those accused to breach them), forgetting that, sooner or later, they will return to the social conviviality, more dangerous, more revolted and capable of committing crimes worse than those that lead them to the prison.
