Terms & Conditions | What should be observed for the correct arbitration of bail?


The bail institute was substantially modified by Law 12,403 / 2011, which brought its possibility in two different situations. The first is at the time of granting provisional release and the second is as a precautionary measure other than imprisonment.

In other words, bail became used in conjunction with provisional freedom, in cases of flagrante delicto, as well as autonomously as a precautionary measure different from imprisonment, and can be applied in a much more comprehensive way, not restricting itself, therefore, only the hypotheses of flagrante delicto as a guarantee for granting provisional liberty.

Thus, bail can be applied at any time of criminal prosecution, as long as there is no final and unappealable decision on the conviction.

There is the possibility of granting bail, for example, at the time of the conviction, to avoid the risk of escape, thus preventing the convicted person from being arrested before his guilt has been established by the unappealable final judgment.

Correct arbitration of bail

Correct arbitration of bail

According to the teachings of NUCCI (2013, page 132)

Bail is a real guarantee, consisting in the delivery of securities (money, jewelry, real estate, etc.) to the State, in order to ensure the provisional release of a person in custody while the proceedings are in progress. Withholding of such amounts is intended to prevent the defendant from leaving the district guilty; if you do, you lose the amount given as collateral.

In the words of LOPES JR. (2013), the guarantee is a guarantee provided by the accused that aims, initially, to guarantee procedural expenses. It is an inhibiting factor of escape, because, in most cases, its high value becomes a factor that ends discouraging the escape of the accused.

With the bail, it is nothing more than a real guarantee; a bond in which the secured party delivers goods to the State with pecuniary values, in the scope of remaining free while awaiting the delimitation of the process.

In other words, bail is a measure of prison guardianship; is a measure that goes against the decree of provisional segregation of the accused, linking it to the process, as a way to guarantee the normal progress of the feat.

Art. 336. The money or objects given as bail shall serve to pay the costs, the indemnity of the damage, the pecuniary benefit and the fine, if the defendant is condemned.

Article 336 of the Criminal Procedure Code shows us that bail is provided by the accused through money or object with economic value. Thus, it is very common for jewelry, watches and other goods of high economic value to be pledged as collateral.

The institute is intended to cover all procedural costs and must be used for the payment of costs and to make good the damage in case of conviction.

It is also worth noting that acquittal in the criminal sphere does not imply a refund to the accused of the amounts assigned as bail, since, if there is damage in the extrapenal sphere, it may be used to reimburse this damage.

In this case, it is correct to affirm that the bail must be arbitrated in a proportional way, therefore, taking into account, therefore, the economic condition of the accused and the seriousness of the crime for which the individual is being accused of having committed, arbitrated to a high value, which is out of sync with the economic possibilities of the accused and with the seriousness of the crime allegedly perpetrated, the bail will become fruitless, therefore, without useful result.

Thus, bail must meet the severity of the agent’s economic crime and condition so that it can be arbitrated, since it becomes innocuous and fruitless if it is handled in disagreement with the aforementioned requirements.

On this treadmill, an excessively high bail for a poor, or bail of derisory value to those who have a good economic condition, is unfair and makes it disproportionate and fruitless.

Thus, bail, in order to be useful for prosecution, must be arbitrated in accordance with the seriousness of the crime and the economic conditions of the agent, in accordance with articles 325 and 326 of the CPP.

It should also be pointed out, as already explained, that bail can be given by means of money or object, only requiring that the values ​​given in its title have economic value. Art. 326. In determining the value of the bond, the authority shall take into account the nature of the infraction, the personal conditions of fortune and previous life of the accused, the circumstances indicative of their dangerousness, and the probable importance of the costs of the process, until final judgment.

It should be noted that at the same time that the institute can be waived, it can be increased up to a thousand times, depending on the concrete situation, always taking into account the binomial severity of the offender’s economic condition.

It follows, therefore, that bail should be arbitrated on the basis of common sense; there must be a reasonableness in their arbitration, always taking into account the seriousness of the crime and the economic condition of the agent, since a bail rate low for the economically well-off, it’s no use, since it will have no relevance, therefore, an impeding factor.

On the other hand, a high bail for a person with financial difficulties, makes it harmless, because it will work with an element that will prevent the release of the accused.