Economic reality of the accused as criterion for determining bail

In the post Arrested unable to pay bail, we talked about bail in the police sphere.

Today, the STJ published on its website a decision that updates the jurisprudential understanding on the subject.

In this post, among other things, we commented on the beacons that should guide the “arbitration” of the value of the bail by the police delegate or the magistrate.

In this sense, the Code of Criminal Procedure (CPP) establishes that the guarantee will be from 1 to 100 minimum wages, for an offense with maximum deprivation of liberty equal to or less than 4 years, or from 10 to 200 minimum wages, for infraction with penalty deprivation of liberty for more than four years.

Code of Criminal Procedure (CPP)

Code of Criminal Procedure (CPP)

Art. 325. The value of the guarantee shall be fixed by the authority granting it within the following limits

I – from 1 (one) to 100 (one hundred) minimum wages, in the case of an infraction whose maximum deprivation of liberty does not exceed four (4) years;

II – from 10 (ten) to 200 (two hundred) minimum salaries, when the maximum sentence of imprisonment is more than four (4) years.

Within these ranges of values, the exact amount of the guarantee is reached 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.


Art. 326.

Value of the bond

Value of the bond

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.

With regard to these beacons, we commented in that post that, in practice police station, most of the times, 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 (at that moment, as an example, we quote here).

Well, in HC 386/291 / SP, Minister Humberto Martins, on a preliminary basis, assessed a situation in which a man was arrested in the act of committing bodily harm to his partner and child (article 129, § 9o, of the Code Criminal – CP).

The senator on duty had granted provisional release on bail of R $ 2,811.00 (3 minimum wages).

After more than 20 days of imprisonment, the accused did not pay the bail because he did not have the resources to do so.

Therefore, the public defendant appealed to the Court of Justice of São Paulo (TJSP) pleading that the bail be waived.

The waiver of the guarantee is provided by the CPP in paragraph 1 of Article 325. Check the device.


Art. 325.

If so recommend the economic situation of the arrested, bail may be:

If so recommend the economic situation of the arrested, bail may be:

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

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

The TJSP rejected the injunction pleaded by the defense, which appealed to the STJ.

In the STJ, the deputy minister, Humberto Martins, pointed out that the imposition of the bail, dissociated from any of the legal assumptions for “maintaining custody of the custodian, does not have the power, in itself, to justify the content of the provisions of art. 350 of the Code of Criminal Procedure, when the economic situation of the defendant does not recommend it “(see here the decision).

That is, the Minister Humberto Martins considered that the economic situation of the defendant should be taken, in fact, taken into account for the arbitration of the value of the bond.

Specifically in this case, the defense “did not provide a document with evidence of the patient’s economic situation,” which prevented the minister from assessing whether or not the bail was excessive in the face of the economic possibilities of the defendant.

In view of this, he partially approved the injunction and determined that the first-instance court to examine the patient’s financial situation in order to avoid any possible disproportionation of the guarantee, as well as to analyze the possibility of imposing precautionary measures other than imprisonment. “

What is important in HC 386/291 / SP is that he repudiates the common practice of simply “arbitrating” bail, if I may be punished.

Minister Humberto Martins makes clear in his decision that, in fact, the “financial reality” of the accused should be examined in order to avoid “eventual disproportionalization of the bail.”

Thus, this decision of the Supreme Court stands on the opposite side of the usual practice of ignoring the beacons of art. 326 of the CPP in the establishment of the guarantee. What is seen in everyday police are bail bonds not paid for, not to provide provisional release, but to keep the accused arrested in an atypical (not expected) hypothesis of a precautionary prison.

Let’s wait and see if, in other cases, the STJ will consolidate this position.