The arrest in flagrante is the one that occurs while the crime is committed, or occurred recently.
Pre-trial detention occurs during the phase of police investigation or prosecution, when there are signs that link the suspect to the crime. It is usually enacted to protect the process, the investigation, public or economic order.
Temporary imprisonment, on the other hand, can be decreed both during the investigation and in the course of criminal proceedings. It is used for the Public Prosecutor’s Office or the police to collect evidence, so that they can then request the suspect’s preventive detention.
As a rule, the term of a temporary arrest is up to 5 days.
While flagrant arrest can be ordered by anyone, preventive and temporary arrest requires a court order.
| Flagrant | Preventive | Temporary | |
| What is | It is the imprisonment decreed during the act of the crime, or right after it happened. | Prison used both during investigations and during criminal proceedings, when evidence emerges that links the suspect to the crime. | Used during an investigation, usually for the prosecutor or police to collect evidence. |
| Term | Up to 24 hours. | From four months to one year and six months. | Five days, which can be extended for another five. |
| Law | Article 302 of the Criminal Procedure Code. | Article 312 of the Criminal Procedure Code. | Law 7,960 / 89. |
| When it can be enacted | When the subject is committing the criminal offense, or has just committed it. | · When the defendant has been convicted of another felony (with a sentence greater than 4 years);
· If the case involves domestic or family violence; · When there is doubt about the subject’s civil identity and he does not provide enough information; · In willful crimes punished with a maximum deprivation of liberty greater than 4 years. |
· When it is essential for police investigations;
· When the subject does not have a fixed residence or does not provide necessary information about his identity; · When there is evidence that links the suspect to a specific crime, such as homicide, kidnapping, theft, rape, drug trafficking, among others. |
| Court order | It is not necessary. | Needs court order. | Needs court order. |
| Who can decree | Anyone can decree imprisonment. | Prosecutor, plaintiff or assistant, or representation of the police authority. | It must be decreed by a magistrate, at the request of the Public Ministry or representation of the police authority. |
Requirements for each type of prison
Arrest in the act
This type of arrest can occur in cases of flagrante delicto, when the subject:
I – is committing the criminal offense;
II – has just committed it;
III – is persecuted, immediately afterwards, by the authority, by the victim or by any person, in a situation that makes him presume to be the perpetrator of the infraction;
IV – is found, shortly afterwards, with instruments, weapons, objects or papers that make him assume that he is the perpetrator of the infraction.
Pre-trial detention
This type of arrest can occur under the following requirements:
- a) guarantee of public order and economic order (prevent the defendant from continuing to commit crimes);
- b) the convenience of criminal instruction (preventing the defendant from disrupting the proceedings, threatening witnesses or destroying evidence);
- c) ensure the application of criminal law (make it impossible for the defendant to escape, ensuring that the sentence imposed by the sentence is served).
Temporary arrest
This type of arrest can occur under the following requirements:
I – when essential for the investigations of the police inquiry;
II – when the nominee has no fixed residence or does not provide elements necessary to clarify his identity;
III – when there are well-founded reasons, according to any evidence admitted in criminal law, of authorship or participation of the accused in the following crimes of murder, kidnapping, theft , rape, drug trafficking, crimes against the financial system, among others.
