Bail Bonds: What you need to know

Bail institute within our legal system

what is bondcliff? The company who provides a bail bond to a defendant is required under state law to pay the court the full amount of bail set if the person who acquired the bond does not show up to his hearings. 

With the advent of Law 12,403 / 11, the use of the bail institute within our legal system was significantly increased. As a result of this legislative innovation, which amended the Code of Criminal Procedure in the part dealing with prisons and various precautionary measures, infractions whose maximum sentences summarized in abstract do not exceed 04 years are subject to provisional release by means of bail in the police sphere.

In this context, common crimes such as simple theft, receiving, drunkenness behind the wheel, etc. are guaranteed by the police officer himself, which undoubtedly reflects in the politics of decertification that is so encouraged by the implementation of the custody hearings. However, situations in which the police authority establishes bail amounts are not uncommon, but the inmate is not in a position to pay.

It is at this point that an interesting question arises and little touched upon by doctrine. We refer to cases where the magistrate, when analyzing the indictment in flagrante, grants provisional release on bail for the benefit of the prisoner, but the prisoner fails to pay it. In these situations, the question arises: what is the title of this prison?

This, then, is not autonomous and can not justify the maintenance of segregation, which is only based on their conversion into preventive detention, otherwise, their freedom must be restored by means of a different precautionary measure.

Having said that, we have stated that the approach to this question must be divided into two aspects, if not yet. If the inmate fails to pay the bail because he does not have the financial conditions to do so, it will be for the judge to reduce the value of this liberatory injunction or even to waive it under the terms of Article 325, §1, items I and II of the CPP.

On the other hand, if the inmate fails to pay the bail even if the financial conditions for it are fulfilled, it will be for the judge, as the case may be, to substitute this precautionary measure for another one of the prison or to decree the preventive measure by virtue of the previous noncompliance with the measure decreed, as expressed in article 312, sole paragraph, with article 282, §§ 4 and 6 of the CPP.

Payment of the fixed bail

In this context, it is not possible that the arrest in flagrante will last for one or two months awaiting the payment of the fixed bail. It should be borne in mind that in these cases the provisional release granted to the inmate is conditional on the payment of the bail. Thus, if this condition is not met within a reasonable time, the restriction of freedom will only be justified with the enactment of preventive custody.

Taking an analogy with article 322, sole paragraph, of the CPP, we understand that the incarcerated in flagrante would have the term of up to 48 hours to pay the guarantee, otherwise, the judge would be authorized to replace it with another precautionary measure or even to convert the flagrant pre-trial detention, as already mentioned. In such situations, therefore, the actual red-handed arrest would exceptionally be the basis for the restriction of the detainee’s freedom. Consequently, its maximum duration, which normally is 24 hours, would last for up to 72 hours.

In any case, it should be clear that the decision taken by the judicial authority at the time of the examination of the arrest warrant in flagrante must always be justified, which is absolutely in accordance with Article 93, paragraph IX, of the Constitution of the Republic.