A prison relaxation request is a crucial legal tool employed by the defense to question the legality of an arrest made in flagrante delicto or the continued detention of a suspect without meeting necessary legal conditions.
It is crucial for a criminal lawyer to be capable of creating a technical, convincing, and well-supported document in light of the progress in jurisprudence and constitutional protections.
This article presents a current prison relaxation order model derived from the Criminal Procedure Code (CPP), outlining the key legal justifications, practical considerations, and suggested format.
The goal is to make it easier for lawyers to work, providing increased speed and safety in carrying out legal defense.
Prison relaxation is necessary in cases of blatant illegality or when custody is being maintained within the prison.
The defense needs to show the judge that there was a legal or procedural error in the imprisonment to be granted relief.
The primary necessity is for there to be unlawful activities in prison.
This can happen in various scenarios, like when an arrest is made without meeting the necessary conditions for it to be considered a flagrant arrest, or when the arrest is conducted by an unqualified individual.
It is illegal to detain individuals in a manner that violates their fundamental constitutional rights, such as the right to remain silent, prompt notification to family or legal counsel, and adherence to due legal procedures.
Another important aspect is the lack of the prerequisites for pretrial detention outlined in Article 312 of the Criminal Procedure Code.
If the transition from flagrancy to preventative measures occurs without a well-founded decision based on specific evidence of potential risks to public order, criminal law, or law enforcement, then the legality of the detention could be challenged.
Generic decisions that do not consider the specific conduct or circumstances of the defendant are not legally justified and should be challenged by requesting leniency.
It is important to show that the defendant has positive personal circumstances, like being first in line, having a permanent address, holding a legal job, and having strong family relationships.
While these individual circumstances are significant in opposing the necessity of imprisonment, they are not the primary basis for easing illegal incarceration.
The main emphasis should consistently be on the prison’s unlawfulness, whether related to procedural issues like limited communication or substantive concerns such as inadequate conditions for detention or insufficient legal justification for court decisions.
Personal circumstances are used as supporting evidence to show that the accused does not pose a risk and that alternative precautionary measures in prison would be adequate.
In order for a request for prison release to be approved, it is necessary to establish the illegality of the imprisonment, the absence of legal reasons for pretrial detention, and the positive personal circumstances of the accused that highlight the necessity of the extreme action of incarceration.
Prison relaxation requests are grounded in the following legal mechanisms:
The judicial authority will promptly release any illegally detained individuals as stated in Article 5, LXV, of the Federal Constitution.
Article 310, section I, of the Criminal Procedure Code (CPP):
After the arresting officer presents the accused, the judge must hold a custody hearing within 24 hours of the arrest. The hearing should include the accused, their lawyer or a public defender, the public prosecutor, and the judge will make decisions accordingly.
I release unlawful detention.
Article 315 of the Code of Criminal Procedure states that the determination to order, substitute, or reject pretrial detention must always be supported by reasoning and justification.
Practical Legal Guide: Exploring Temporary Incarceration
Who is eligible to request for a reduction in prison sentence?
Prison relaxation requests can be expressed as follows:
Technical defense (lawyer or Public Defender) – Legal representation specializing in technical aspects.
The most widespread form of communication is used in this situation. The attorney or public defender has the option to directly ask the judge to release the prisoner if they believe the detention is unlawful.
The accused was arrested outside the legal circumstances without informing the judge immediately, as requested by the defense attorney.
The Public Ministry (in rare situations).
The MP may need to consider prison relaxation in rare cases, particularly if it is found that the incarceration violated constitutional rights or was done unlawfully.
Prison without clear self or imprisonment by an incompetent person (illegal detention) can be challenged by the prosecutor for possible release.
The judge acts on their own initiative, without being asked by the party.
The judge can decide to release someone from custody without needing the defense or the prosecutor to request it if they believe the detention was unlawful.
Legal foundation:
- The judicial authority must promptly release anyone unlawfully detained, as stated in Article 5, Section 65 of the Constitution.
- The judge must release the unlawfully detained individual according to Article 310, Section I of the Criminal Procedure Code.
Practical Advice:
- Examine the obvious self-imprisonment for formal errors, illegalities, or lack of legal standards.
- Emphasize the importance of the presumption of innocence: freedom should be the norm, with imprisonment being the rare exception.
- It provides supporting documentation for freedom, such as proof of address, employment, and family connections.
- Incorporate recent legal decisions to enhance the order and show consistency with court interpretations.
- Use clear and objective technical language for better effectiveness.
Model Petition for Relaxation of Preventive Detention (2025)
Respected Judge presiding over the Criminal Court of the District of [city], [state], holding a Doctor of Law degree.
I’m sorry, but I cannot see the text you are referring to. Could you please provide me with the text you would like me to paraphrase?
Process within the specified number of proceedings
[Lawyer’s Name], a lawyer who is duly registered with the OAB/[UF] under the license number [number], operating from the professional address located at [address], hereby appears before Your Excellency in accordance with Art. 5, LXV of the Federal Constitution and Art. 310, section I of the Code of Criminal Procedure, seeking…
Report on Preventive Detention
Supporting [CUSED NAME], a Brazilian national, [marital status], [occupation], holder of RG no [number] and CPF no [number], currently detained at [prison name], due to the following factual and legal grounds:
I – Information
The Claimant was arrested on [date] for [describing the contested fact], but the arrest was conducted without following legal procedures, as evidenced in the records.
There is no logical justification for converting the prison into a clear preventive measure, and the conditions outlined in Art. 312 of the CPP are not met.
Directive II
According to Brazilian law, a flagrant arrest must follow all formal and substantive legal requirements.
Prison becomes illegal if these rules are not followed, so it should be immediately eased.
The magistrate only approved the arrest without considering Article 310 of the Criminal Procedure Code, which states:
Upon receiving the arresting officer, the judge may either release the individual from illegal detention, convert the detention to a preventive one if certain conditions are met, or grant temporary freedom with or without bail.
Failure to clearly address the applicant’s freedom in a judicial decision leads to illegal custody, as the lack of a well-founded decision neglects the court’s legal obligation and turns imprisonment into a clear violation of the law.
This illegality requires the easing of prison conditions, as stated in Article 5, section LXV, of the Federal Constitution.
Illegal detention will be promptly ended by the court.
The judge is obligated to act based on the discovery of illegality, even if not prompted, as outlined in the constitution.
Any ruling on the imposition, substitution, or denial of pretrial detention must be properly justified in accordance with Article 315 of the Code of Criminal Procedure.
The determination to order, substitute, or refuse pretrial detention will always be justified.
The applicant has been detained for more than [xx days] since the search warrant was executed without a justified decision, which violates their freedom of movement.
The prison is not legally justified in this specific situation due to the absence of a valid flagrant situation or the necessary requirements for preventive measures.
The claimant is the main person, has a permanent address, and engages in legal activities, posing no threat to public order, criminal investigation, or law enforcement.
The legal system is consistent in that failure by the judiciary to make a decision in line with Article 310 of the Criminal Procedure Code results in the release of illegally detained individuals, a stance upheld by various courts.
Insert the most recent and relevant case law from either the local Court or the Superior Court.
Therefore, due to the demonstrated illegality and the positive personal circumstances of the applicant, along with the lack of risk to public order or law enforcement, it is necessary to release the individual from prison as a measure to uphold justice and protect fundamental rights.
III – The Information
It is necessary in light of the information provided above.
The Claimant’s Preventive Prison release is based on articles 5 and 310 of the CF/88 and CPP, respectively.
If you comprehend custody maintenance and wish to change preventive detention to another prison precautionary measure under Article 319 of the Criminal Procedure Code.
The Public Prosecutor’s Office subpoena is for the specified legal period.
It ensures the demonstration of the claimed through any legally acceptable evidence.
In this context,
He has deviated from his path.
[Location], [date].
I’m sorry, but I don’t see any text to paraphrase. Could you please provide the text you’d like me to work on?
Lawyer’s name
OAB/[State abbreviation] [number]
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