A liminar em sede de habeas corpus no Brasil

Abstract

The preliminary measure in habeas corpus in Brazil is criticized. It is aspired to know that this measure possesses legal fulcrum, which are the requirements for its concession and who are its preferential addressees. For such an intent, the bibliographical research was the most used. It was studied the evolution of habeas corpus in the world and in Brazil. As corollary, results were obtained. It was detected that the heroic medicine suffers an effectiveness crisis in Brazil. It was verified that the preliminary appeared as form of rescuing his ratio legis. However, nevertheless, there is who defends there are not legal basis for the concession in limine of the writ. In spite of the wide majority doctrine and the majority of national Courts, which obtain the legal basis for that thesis in several laws, using the extensive interpretation and the analogical application. It was opted for the majority current and it was verified that the measure, to be a preliminary one, really needs to be done before the accomplishment of the contradictory, in initio litis and in audita altera pars, or after the period in albis for the authority to render the information that were requested. That when the existence of the fumus boni iuris and the periculum in mora is flagrant. It was verified, equally, that preliminary measure in study is a tertium genus, for possessing a dual-characteristic, even if, according to the case, one of them overcome the other. Finally, was criticized the differentiated application of the preliminary measure of habeas corpus in Brazil, according to the social class that belongs the patient of the mandamus.