Arrested unable to pay bail – Criminal law in context

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.