One of the proclaimed novelties of the new law of personal criminal precautions – Law 12,403 / 11 – is the revaluation of the bail. According to the previous wording, the hypotheses of the payment of bail were regulated by articles 321 and following of the Code of Criminal Procedure, related to the cases of red flag arrest. Thus, the agent arrested in flagrantee paid bail – in the hypotheses admitted – and obtained the provisional freedom to answer the process.
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The legal framework of the bail institute suffered from a problem: Article 310, especially its single paragraph – added in 1977 – which provided that, in the case of red-handed arrest, the judge would grant provisional liberty when it found that one of the hypotheses of probation (CPP, art. 312), by attending an end to all acts of the process.
In other words, if, after the arrest in the act, one of the requirements of article 312 was established, the agent was to be remanded in custody – without being able to pay bail for freedom. On the other hand, if the elements of article 312 were absent, the subject was released independently of the payment of the bail.
Therefore bail was unfeasible or unnecessary, depending on the situation of the inmate. In short, it was an atrophied and useless institute.
With the new law of personal criminal precautions (Law 12,403 / 11), the bail recovered its force. It is now a criminal injunction, which can replace pretrial or other precautionary custody if it is found necessary to preserve the order of the process and ensure the defendant’s participation in the acts of instruction. It is possible to determine the payment of bail in any crime, a measure that values the institute, making it recover the prestige of appropriate procedural precautionary instrument.
Bail values have been greatly altered. The new art. 325 fixed ceiling of 100 minimum wages for infractions up to 4 years and 200 for infractions above this level. The values can be – according to the economic situation of the defendant – dispensed, reduced up to 2/3 or increased up to 1000 times.
In short, the amount of the guarantee can reach a maximum of 110 million reais.
The amount of the bail – however – cannot be applied without criteria, or as a form of anticipation of the penalty, as has happened in some situations. The bail is a precautionary measure, that is, has the necessary scope to ensure the participation of the defendant in the procedural acts and avoid the frustration of law enforcement. It is therefore admissible only if there are grounds for fear that the defendant will disturb the proceedings, violate evidence, plan to escape, or in similar cases.
Bail is the amount of money set by the court, a bond is the method of payment. visit lions bailbonds`s official website for more information.
In such cases, the value of the bond will be proportional to the defendant’s economic situation and may reach a high level if the agent enjoys a well-off economic situation.
On the other hand, the bail order based only on the seriousness of the crime and the economic situation of the defendant, without indicating the procedural reasons that indicate the application of the injunction does not seem appropriate to our system, which has the presumption of innocence as a foundation. The mere fact of being the defendant and rich is not enough to apply for sureties millionaires.
Bail is not an instrument for prescribing jurisdiction in the face of public outcry, or a mechanism of social justice, but a means of safeguarding the process from concrete evidence of disorder, turmoil, or subtraction of the agent to judicial determinations.
Thus, if properly applied, in cases provided for by law, bail may play a role as or more relevant than other precautionary measures, such as imprisonment, provided that the principles of reasonableness and adequacy are observed.
In short, like any other legal institution, bail depends on the judge’s good sense and prudence, elements that ensure a rational, legitimate and coherent legal action.