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Arrested unable to pay bail – Criminal law in context


Police bail

Police bail

In the case at hand, could the police authority have arbitrated bail? Or, more generally, in what hypothesis is it possible to arbitrate bail in the police sphere?

In this regard, the Code of Criminal Procedure adopts an objective rule, that is, in situations of flagrant arrest, the bail may be arbitrated by the police officer himself in those cases in which the maximum penalty commited to the offense in abstract is equal to or less 4 years ago.

Code of Criminal Procedure

Art. 322. The police authority may only grant bail in cases of infraction whose maximum deprivation of freedom does not exceed four (4) years.

In the situation we are discussing, therefore, the delegate acted correctly in arbitrating the bail, since it is an attempt of simple theft and the maximum penalty for this crime is 4 years. Check the device of the Penal Code.

Criminal Code


Art. 155 – To subtract, for himself or for others, something alien to him:

Penalty – imprisonment, from one to four years, and fine.

When this has been overcome, it is asked: which ones should guide the arbitration of the value of the bail by the police officer? Or rather, what guides the delegate to arbitrate $ 1,000.00 of bail and not another value?

Well, as for the amount of bail stipulated by the police officer, the Code of Criminal Procedure provides that it can vary from 1 to 100 minimum wages.

Within this range, the exact amount of the bond is arbitrated based on the following elements and criteria:

  • the nature of the offense;
  • the personal conditions of fortune
  • previous life of the accused;
  • circumstances indicating the agent’s hazard;
  • as well as the probable importance of the costs of the process, until final judgment.

Observe the device that brings these parameters.

Code of Criminal Procedure (CPP)

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.

The practice police station, however, allows to observe that, in most cases, art. 326 of the CPP is not considered during the arbitration of the police bail, although there are internal norms in the police agencies pointing to the fulfillment of this device (for example: this one of Pará).

Following the discussion, another question arises as follows: in the present case, could the police officer exempt the prisoner of bail on the grounds that he is admittedly poor?

In fact, the Criminal Procedure Code, § 1 of art. 325, states that, depending on the economic condition of the inmate, the bond may be:  

  • dispensed;
  • reduced by up to 2/3; or
  • increased by up to 1000 times.

See the wording of the legal device.


Art. 325.

1 o If it so recommends the economic situation of the inmate, the bond may be:

I – dispensed, in the form of art. 350 of this Code;

II – reduced by a maximum of 2/3 (two thirds); or

III – increased by up to 1,000 (thousand) times.

Well then, could the police officer reduce, waive or increase bail amounts, or is such an initiative only for the magistrate?

This is a non-pacified issue, for the following reason. The CPP, when mentioning the possibility of waiver of bail, refers to art. 350, which, in turn, refers to the magistrate and not the delegate as an authority capable of enforcing bail and subjecting the prisoner to the obligations contained in arts. 327 and 328 of the CPP (obligations to appear before the proceedings and to not move or stay away for more than 8 days).

Take a look at art. 350.


Art. 350. In cases in which bail shall be granted, the judge, verifying the economic situation of the prisoner, may grant him provisional release, subjecting him to the obligations contained in arts. 327 and 328 of this Code and other precautionary measures, if applicable.

Given that, it is understood that the police officer can reduce bail by up to 2/3 or increase it by up to 1000 times, depending on the economic condition of the prisoner, but he can not waive bail, as it is a private act of the magistrate.

It should be emphasized that the issue is not peaceful and, in a minority, there are authors who believe that the police officer could release bail in the case of a poor defendant. For a more complete discussion of this, go here.

Maintenance of the prison of the accused who does not pay the stipulated bail

Personally, in the case of our context today, we have also seen that the first-degree magistrate considered regular the flagrant drawn by the delegate and maintained the amount of bail stipulated by the police authority.

However, the inmate did not have the financial means to deposit this amount of bail and was kept in prison.

In that case, should the defendant be held in custody for failing to pay bail?

It is another point devoid of a pacified solution and is often not even mentioned in classrooms, books, etc.

Notwithstanding this, note that HC of the Public Defender of São Paulo examined this point and led the magistrate to the thesis that “the decision fixing bail […] should entail immediate issuance of a release permit, setting a deadline for and, if it is not paid, make the proceedings final for the judge to change the precautionary measure and, ultimately, to order custody … “

The public defender, in the case, understood that “when the judge arbitrates bail, or maintains the decision of the police authority, exara a decision that has the legal nature of granting provisional release, being a contrassense that the person is not immediately released.”

This thesis that the prisoner should be released if he does not have the economic conditions to pay bail is not new. For example, in HC 129.474 / PR (read the judgment here), filed in the STF, the defense also claimed the illegality of the prison after granting the provisional release on bail.

In that HC, the Rapporteur, Rosa Weber, considered it “unjust and disproportionate to condition the issuance of the respective release permit to the bail bond” and granted “the benefit of the provisional release of the patient without remission.”

In the case discussed here, the Public Defender of São Paulo brought this question to the STJ through HC 361,482 – SP.

The STJ, in turn, in line with the position of the STF in HC 129.474 / PR cited above, considered that the time the patient was in prison without paying the stipulated bail, specifically demonstrates, the financial incapacity to comply with the injunction , which should then be waived, pursuant to art. 350 of the CPP (see here the decision of the STJ).

HC’s charge at STJ


Another issue that can be drawn from the context of today if, in the face of the denial of the injunction request of bail exemption, made by the Public Defender of São Paulo, in fact, would fit the HC 361.482 – SP in the STJ?

The answer is, as a rule, no.

This understanding was consolidated in Precedent 691 of the Federal Supreme Court (STF).

STF summaries

691. It is not for the Federal Supreme Court to hear writs of habeas corpus against the Rapporteur’s decision, which, in habeas corpus, applied to a higher court, rejects the injunction.

The reason for this summary is that if the STF, for example, analyzes the content of HC not yet appreciated by the Superior Court of Justice (STJ), there would be original appreciation of the matter by the Supreme Court, which would be a true suppression of instance, being , therefore inadmissible.

Thus, for there to be per saltum appreciation of the matter, that is, in order not to set up a suppression of instance, it is not HC against denial of the injunction in HC.

However, the application of this summary has been ruled out by STF and STJ jurisprudence in cases of flagrant illegality or teratology (see, for example, HC 122.072 -SP assessed by STF and HC 127.655-SP judged by STJ).

Well, in the case that composes our context today, the Public Defender of São Paulo took advantage of this exception. The public defender considered that the denial by the TJSP of the injunction contained in the HC constituted flagrant illegality and brought HC into the STJ.

If you have read the full text of the HC in the link provided above, you have seen that the STJ agreed with the defendant’s thesis and considered that the manifest illegality in the TJSP decision authorized the Supreme Court to overtake Supreme Court 691 in the case and allowed the analysis of the defendant’s HC.

Reformatio in pejus in HC filed by defense


Having overcome the discussions of the bail and the HC, we have to discuss the last issue related to today’s context: reformatio in pejus in HC, filed by the defense, without ministerial recourse.

As seen, the judge of the TJSP, when analyzing the HC of the defense, that pleaded the exemption of the bail, rejected the injunction and worsened the situation of the patient when ordering the preventive custody, without there being any request of the Public Ministry in that sense.

The art. 617 of the CPP establishes that, when only the defendant has appealed the sentence, the decision of the court, chamber or class can not aggravate his situation.


Art. 617. The court, chamber or class shall attend in its decisions to the provisions of arts. 383, 386 and 387, as applicable, but the penalty may not be aggravated, when only the defendant has appealed the sentence.

Although it refers to the appeal of the judgment, the other remedies apply to that prohibition of aggravation of the situation of the applicant in cases in which only he insults against the judicial provision

The art. 617, therefore, illustrates a broader principle, the principle of prohibition of reformatio in pejus .

The question that applies here is: does this principle apply, even in cases where there is habeas corpus filed by the defense and there is no appeal by the Public Prosecutor’s Office?

As is well known, the HC is not a resource, but a constitutional action, so much so that, for example, most doctrine and jurisprudence do not admit habeas corpus when the decision can be challenged by appeal.

However, although the HC is not an appeal, the principle of prohibition of reformatio in pejus applies to it.

The STF considers that the prohibition of reformatio in pejus is a “principle immanent in criminal proceedings” and, therefore, it also applies to habeas corpus even if it is not an appeal (see HC 126.869 of STF dealing with this subject).

In summary, it is forbidden the worsening of the condition of the defendant in access “recursal” privative of the defense by means of habeas corpus .

Therefore, in the present case, due to the prohibition of reformatio in pejus , the judge of the TJSP could not have ordered the preventive custody of the defendant.

And, in fact, the STJ understood the decision of the HC filed by the defendant (HC 361.482-SP), which granted an injunction, reinstating the pre-existing bail bond and waiving its payment under the terms and conditions of art. 350 of the CPP, with the release of the patient until the judgment of the merits of habeas corpus in the Court of origin.


The judgment of admissibility in intentional crimes against life

The Federal Constitution, in its article 5, item XXXVIII, letter “d”, establishes that the Court of the Jury is competent to judge intentional crimes against life. In these cases, the conviction or acquittal of the accused is determined by seven jurors, lay persons, as a rule, without technical qualification.

Intentional crimes against life

Intentional crimes against life

These seven jurors can proclaim their verdict according to their free conviction, that is, the decision may have as its basis endo or extraprocedural grounds. Moreover, the decision-making process of the jurors dispenses with no justification. It is what is called free-standing, unmotivated conviction.

In view of this context, it seems logical to think that only accusations founded and with concrete support in sufficient evidence are subject to judgment by a Board of Sentence. Practice, however, reveals that this is not the reality. More often than not, at no time does an effective filter on the accusations formulated by the Public Prosecutor’s Office take place.

Early in the process, when the complaint is received, few judges make an effective analysis of the just cause for the prosecution. In fact, it is common to receive the complaint without any kind of reasoning. This procedure is chancelado by the own “Guardian” of the Constitution:

“The Court’s case-law is peaceful in that the receipt of the complaint, since it is not a decision-making act, does not require a statement of reasons” (ARE 845341 AgR, Rapporteur Min. DIAS TOFFOLI, Second Chamber, judged on 08/09/2015).

We have seen, therefore, that within the scope of the Jury’s Court, there is no strict control over the initiation of the process – receipt of the complaint without reasoning – and not at the end of the process – possibility of condemnation by lay judges in an unmotivated way.

Some unsuspecting people may think that the procedural filter for unfounded accusations lies in the admissibility judgment established in the pronouncement, according to the provisions of article 413 of the Code of Criminal Procedure: ” The judge will, in substance, pronounce the accused, if convinced of the materiality of fact and the existence of sufficient evidence of authorship or participation. ” Ledo mistake.

The admissibility judgment is almost mythical in that, at that moment, most doctrine and jurisprudence say that the so-called “principle” (which in principle has nothing) of the dubio pro societate, ie doubt “favors society “and leads to the submission of the fact to judgment by the Jury.

Thus, there is no filter in the complaint, there is no filter in the pronunciation and the control over the conviction is minimal. Moreover, the jury is the only institution that allows for conviction even if there is relevant doubt. Indeed, even if there is more than 40% doubt – in the case of a conviction in which four jurors vote for the conviction and three jurors vote for acquittal – the sovereignty of the verdicts must be respected.

In this way, it is necessary to recover the need to effectively carry out the procedural filter and the examination of just cause. In fact, only firm, robust accusations, supported by evidence, must remain to avoid injustice and the condemnation of innocent people.

Documentation to hire a bond

Contract between the negotiating parties, for example, a lease, a labor contract, a work contract, a legal procedure or a financial factoring contract. 

In the bonds for moral solvency it is necessary that the guarantor presents proof of income.

Documents that prove the solvency of the company. Here is included:

Financial Documents

Financial Documents

– Statutory Financial Statements of the last financial year and Internal Financial Statements of the last month duly signed by the legal representative. 

– Copy of the Annual Declaration of Income Tax including its annexes. 

– Patrimonial relationship with identification data of the urban real estate (location, surface, estimated value, data of the Public Registry of the property, etc.) properly signed.

Legal Documents:

– Original of the Marriage Certificate (in the case of natural persons). If you are married by a spousal society, you must have the spouse’s signature. 

– Original of the incorporation of the company and copy of the modifications to it. 

– Original testimony in which the power to administer and for acts of ownership is shown, please the people who will sign the contract indicating the registration data in the Public Registry of Commerce. 

– Copy of the deed that demonstrates the legitimate ownership of the Property granted in Guarantee, with the registration data in the Public Registry of Property.

Technical documents:

– Curriculum of the company or individual requesting the deposit. 

– Other elements that the applicant considers convenient to facilitate the operation.

Identification documents:

– Original official identification (IFE, Passport, Booklet, Professional Certificate etc.) 

– Original proof of address. (Recent bank statement, Telephone, Light, etc.)

Documents of the jointly liable

Documents of the jointly liable

Same as those described for the main applicants.

Questionnaire request and the contract with the surety:


This will be provided by a letter of authorization to be investigated in the Credit Bureau.


– Letter of authorization to be investigated in Buró de Crédito. 

– Real estate appraisals. 

– Certificates of freedom of encumbrances in real estate located in cities of the interior of the republic.

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Guilty Crime: You’ve Always Heard, But Do You Really Know What It Is?

This column is for you, a law student, who no longer has the right to say that the guilty crime “is that unintentional”, but also suffers from the curious questions of the family lunch, having difficulty explaining to his aunt because not everything in the world is eventual deceit.


Misconduct is the result of voluntary action directed at a lawful purpose which, by not observing an objective duty of care, causes a damaging result. The guilty offenses are exceptional and, therefore, can only be applied by express legal provision – without this prediction, the guilty punishment is incabível (principle of the exceptionality).

The evolution of guilty crime must be seen alongside the way of theories of conduct in criminal law.

The evolution of guilty crime must be seen alongside the way of theories of conduct in criminal law.

In causalism, first, fraud and guilt were highlighted in the stratum of guilt, because subjective elements. Considering the division of Liszt-Beling, in an objective and subjective area of ​​crime, fraud and guilt would only be analyzed after the affirmation of the purely objective injustice. Guilt was, then, a purely psychological conception.

The overthrow of causalism came precisely because of its division into objective and subjective points, since the concept of causal conduct was insufficient to explain the omissive crimes and, with respect to guilt, causalism forgot that the guilty crime was derived from normative criteria.

It was with Welzel’s finality that the analytical concept of crime was restructured to the format closest to the present one, with fraud and guilt in the type (adequate place to devalue action and result) – although it is already spoken in analyzing guilt in other strata, such as antijuridicity.

In the Military Penal Code, in art. 33, although the law does not follow the finalist logic, it presents the elements of guilty crime, namely: i) voluntary human conduct; ii) involuntary result (seeking the achievement of the lawful result, but the illicit occurs); iii) non-observance of the objective duty of care.

With regard to the objective duty of care, for example, the CTB, in arts. 28, 29 and 30, presents the duties of care imposed on the driver and limits the risk allowed. The breach of this duty arises when the conduct practiced differs from the standard of conduct required by law or by social conventions.

Such a duty of care, for part of the doctrine, may be internal, when it is the duty to warn the other about the near or external danger, when duty refers to the omission of dangerous actions, requiring prudent action. But the same doctrine still discusses whether the duty must be objective – starting from the assumption of the average man – or subjective, analyzing from the peculiarities of the agent that practices the conduct.

In order to break the discussion, modern doctrine brought in intermediate conceptions, affirming that there are minimum standards of conduct (such as CTB), but the requirement of the duty of care will be greater, the greater the knowledge, the mastery of a technique, (ie a professional driver will have a higher demand for care than a young driver who has recently been authorized to drive vehicles, even though both of them commit misdemeanors if they hit a victim on the sidewalk).

Still, some people say that what should be taken into account is the social environment in which the author lives.

The result, in wrongful crimes, as well as in malicious crimes, need not be naturalistic, but juridical – from which it can be deduced that the guilty placement of the juridical asset in danger would already be sufficient to affirm the culpable offense, even if materialize the danger materially (see article 56 of Law 9607/98).

In addition, the involuntary result must come from the nonobservance of the objective duty of care, and there must be a causal link between the two.

The guilty crime, finally, requires that the agent has been able to objectively predict the occurrence of the damaging result, from the notion of mastery of a technique. The observer should stand in the position of the agent, but must have in view the circumstances of the concrete case knowable by an intelligent person.

In short, guilty crime is a form of human conduct characterized by the realization of the type of a crime, by a dangerous action and contrary to the duty of care, whose guilt is based on not “avoiding” the avoidable result. The fault here would be a voluntary action, with the mastery of a technique, whose author does not affirm the commitment to the violation of the legal good, constituting itself in a purely normative element.

Arrested suspect entitled to more information Cleerdin & Hamer

An arrested suspect is entitled to more information than he receives

In practice it often happens that a suspect is arrested and detained without knowing exactly what he is suspected of. The suspect is thus made impossible to discuss his case with a lawyer and to challenge his arrest. This practice causes delays for the police and is also contrary to the law. The working process can be easily adjusted, argues criminal law specialist Max den Blanken.

Information about the suspicion

Information about the suspicion

In most cases, if a suspect is arrested by the police, he or she will know why. Because he just stole a can of beer or was involved in a fight, for example. There are also situations where the suspect does not know this. Because there is a change of person and the suspect is completely innocent, but even guilty suspects do not always know why they are being arrested. This is particularly the case with arrests outside the act. The suspect is sometimes only arrested months (or years) after a criminal offense. For a man with an aggression problem, who ends up in a fight every month, the information that he was arrested for a “fight in 2018” is insufficient information. He fought ten times in 2018. It may well be that he is involved, but which fight is it about?

Through a picket notification, the lawyer will only hear the article of the law for which his client has been arrested. In the case of the fight “art. 300 Criminal Code “; in which mistreatment is punishable. Time and Reganaats, or any information about the incident itself are not mentioned. The lawyer can ask the police for more information by telephone, but even then no further information is regularly provided.

Double work for the police and the lawyer

Double work for the police and the lawyer

The lawyer visits his client to jointly determine the strategy for the interrogation. They both don’t know which fight the client is suspected of, so they decide not to answer the police questions. First let’s hear what he is suspected of. After an interrogation of an hour and a half, it is finally clear to the suspect which fight is involved. He would like to make a statement. But not before he has spoken with his lawyer. Another conversation follows with the lawyer and another police interview. All double and time-consuming work. There are no figures, but in practice this situation occurs very regularly. That must be possible more efficiently.

In violation of European rules

In violation of European rules

This practice is not only inconvenient, but also contrary to the rights of the accused. From European regulations and from judgments of the European Court of Human Rights, it follows that every suspect is entitled to information as from his arrest (a) of what specific fact he is suspected of, (b) what criminal offense this would be considered by the police and (c) if known, time and Reganaats. According to the European Court, this right is of great importance to guarantee a fair trial and to allow the suspect to challenge his arrest before a judge.

In the Netherlands, the police do not comply with this. Only the legal qualification, the article of law (b) is communicated. An adaptation of this practice is therefore not only important to prevent duplication of work, but also to guarantee the rights of suspects.

If the fighters had been told that he was suspected of (a) fighting Rick van Leusden (c) in café Ruis on December 5, 2018, (b) what a suspicion of mistreatment (art. 300 Sr.) oReganevert, respected his rights and had already made a statement at the first interrogation (self-defense). It is easy for the police to state this information when they are arrested and on the picket form. A small adjustment improves the effectiveness of the police interrogation and ensures that the rights of the suspect are respected. A win-win situation. To adjust!