Prisão preventiva ilegal e o regime da responsabilidade civil do Estado em Moçambique

Abstract

In the Mozambican legal system, pursuant to Article 59 of the Constitution of the Republic of Mozambique, freedom must be restricted in accordance with the law. This research paper, whose theme is “Illegal Preventive Detention and the Civil Liability Regime of the State in Mozambique”, aims to understand the issue of illegal pretrial detention in Mozambique, determining the Stateʹs civil liability and the right to compensation. Pretrial detention, by its nature, is an exceptional coercive measure that must consider the assumptions and requirements imposed by law before it is decreed the defendant. When this measure is applied without legal basis, exceeding the legal deadlines, it constitutes illegal pretrial detention, or one that violates fundamental rights. However, the functions of the State are performed by officials or agents who, in their activities, may cause harm or damage to citizens, whether through intent or negligence, or due to abnormal functioning of the Public Administration or for reasons of another nature. Therefore, under paragraph 2 of the Constitution of the Mozambique, when the harm is caused by illegal acts is the exercise of their functions, the agent is held objectively liable, and there is no need for proof or subjective elements to attribute liability to the State agent, the State assumes liability for damages caused by acts of its agents, in exercise of their functions, and the same has the right of recourse.