Precautionary measure is a legal procedure used to protection or defense of threatened rights.
It is used in hypotheses of urgency and can be requested before the start of the main process or during its progress.
It is used in specific cases, when there is a proven threat to a right and must be requested through a injunction.
Protection can be used both in matters of Civil Law and Criminal Law.
What is a precautionary measure for?
The measure is used for advance the effects of the protection requested in the main proceedings, until the judgment happens. For this reason, it has a preventive character.
As it is an urgent measure, if the judge understands that it must be granted, this can happen immediately, without the other part of the process being heard about the fact.
The defendant's manifestation will take place during the course of the main action. According to the Code of Civil Procedure, the granting of protection without a party hearing can occur when this represents a risk to the enforcement of protection.
Types of injunction
The measure can be of two types, according to when it is required.
If asked before the main action, it will be preventive and, in this situation, the injunction will be added (attached) to the new process.
If the injunction is requested during the course of the process, it will be a measure incidental.
Injunctive relief requirements
The law states that there are two requirements for the measure to be used. See what they are:
- reasonable intentionl (fumus boni iuris) the request must be reasonable, that is, it must be necessary to guarantee the protection of the right. It is the analysis that the order placed has a valid and adequate legal basis.
- danger of imminent damage (periculum in mora): need for proof that the right is threatened and may suffer irreparable damage. It is confirmation that the delay in protection can cause harm to the right.
When the request for granting the measure is made, the judge must analyze and confirm the presence of these two requirements.
Terms of the injunction
The law provides that the party receiving the injunction before the main action has 30 days (from the granting of protection) to file the lawsuit in court. If this does not occur, the measure loses effectiveness.
End of injunction
In addition to losing its effects if the action is not filed within the deadline, the measure may also lose its effect if the judge determines the extinction (end) of the main proceedings.
Precautionary measures in criminal proceedings
In criminal proceedings, precautionary measures are used mainly in relation to imprisonment. The goal is avoid harm that may be caused by the accused, both to the criminal investigation and to the progress of the process.
There must be a justification for the application of the precautionary measure, that is, it is necessary to prove the risk.
The seriousness of the crime committed must also be considered when applying for a provisional arrest. If the judge feels it is no longer necessary, he can revoke it.
Requirements
The law provides two requirements for the enactment of a precautionary measure in criminal proceedings:
- proof of the need to prevent the commission of new crimes and to protect the criminal investigation,
- adequacy of the measure applied to the circumstances of the crime committed, the seriousness of the fact and the personal conditions of the accused.
Preventive detention, for example, should only be determined if it cannot be replaced by another precautionary measure. Imprisonment can also be ordered if the accused fails to comply with the order received in a previous injunction.
Pretrial detention is decreed before the trial, that is, before sentencing, to ensure the safety of the process or the victim, for example.
Therefore, it is an arrest that does not occur because the accused is found guilty, as the process is still ongoing. It is decreed for security reasons or for the level of danger offered by the accused of the crime.
Pretrial detention can be of three types: preventive, temporary or home.
preventive detention
It can be enacted to guarantee the safety of the investigation, the process or the victim, as long as there is evidence that the accused is the perpetrator of the crime.
It does not have a time limit stipulated by law, it can last as long as necessary and the decision is at the discretion of the judge responsible for the process.
temporary prison
This arrest can only occur during the police investigation, that is, it does not apply in the course of the process. As with other arrests, it must be decreed by the judge, but it is necessary that the delegate responsible for the investigation agrees with the arrest.
Temporary detention has two terms: 5 days or 30 days, in case of heinous crimes. Deadlines can be extended, if justified.
Home prison
House arrest determines that the accused must remain in their residence and any exit is pending a judicial authorization.
It can be applied to people over 80 years old, with serious illnesses and for high-risk pregnant women or from the seventh month of pregnancy. It also applies when the prisoner is responsible for the care of a child under the age of 6 or a person with a disability.
Precautionary measures other than prison
In addition to imprisonment, the Code of Criminal Procedure (CPP) provides for nine situations of application of precautionary measures:
- Appearance of the accused before the judge to report on his activities.
- Prohibition to attend certain places to avoid committing further infractions.
- Prohibition of approaching people related to the crime committed.
- Prohibition to leave the place where the crime took place or where the investigation is carried out.
- Night stay at the residence, also applied to days off.
- Suspension from exercising a public function (if you hold public office) or from economic activities.
- Provisional hospitalization, if the expertise concludes that it is necessary.
- Payment of surety bond to guarantee attendance at the proceedings or to avoid resistance to court orders.
- Monitoring with electronic device (electronic anklet).
Also learn about other types of measures: protective measure and Provisional Measure and read more about Right.