The Superior Court of Justice has received applications to create a summary against the maintenance of custody based solely on failure to pay bail. Since February, the Public Defender of São Paulo has begun to suggest the thesis in the medium of Habeas Corpus requests, reporting the difficulty of some prisoners joining the necessary value to achieve freedom.

Suspected of stealing four deodorants in São Paulo, he was imprisoned 4 months because he could not pay a minimum wage.

A man suspected of stealing four deodorants, for example, was four months behind bars for failing to pay a minimum wage (now at $ 937). The first degree court fixed this bail in October 2016, but he only got HC in February of this year, with injunction of the minister Felix Fischer. Another man framed by simple theft and possession of drugs could leave the prison if he paid $ 468.50. Without money, he waited two months in jail until a favorable decision by Minister Jorge Mussi last April.

Despite the injunctions, the Ombudsman says that the summary is necessary because cases are not isolated. It also considers it manifestly unlawful embarrassment to keep a number of people imprisoned just for not disbursing the stipulated amount.

Defender João Henrique Martini says it does not make sense to conclude that person gets stuck by choice.

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“To set bail, the judge grants provisional release, but conditions that exercise to recall. This means that the requirements of pre-trial detention are not present. It does not make sense to postpone the release permit, even because the other precautionary measures replace the prison, “says public defender João Henrique Imperia Martini, coordinator of the Specialized Nucleus of Second Instance and High Courts, which signs the proposals sent to the STJ.

More efficient, he said, is to recognize the freedom and set a deadline for the suspect to pay the debt or to explain when they can not raise the money. For the release, Martini considers it unnecessary even to require demonstration of financial impossibility.

Routine change

Routine change

Another strategy of the nucleus is to request that, when editing a summary on the subject, the STJ presumes the economic incapacity of who is represented by the Public Defender’s Office.

Martini says that the São Paulo Court of Justice already has a majority in favor of moving bail out of the hypo sufficient, but estimates that the volume of people who are trapped by the fact that they do not have the money to collect it, mainly through decisions during shifts the judiciary. “Are we coming to the conclusion that they are still stuck by choice?” He asks.

The scenario, he says, is contrary to Article 350 of the Code of Criminal Procedure, which deals with provisional freedom depending on the economic situation of the prisoner. The STJ, by the way, has already preceded detainees prisons when the device is not followed.

“Bail for the rich is salvation. Collect and is loose. For the poor is disgrace, because it represents the maintenance of the prison if it can not pay, “says the defender. In many cases, according to him, family members are punished by being forced to make loans and organizing “kitties” to comply with the decision.

Proposed Thesis:
(i) Persons represented by the Public Defender’s Office enjoy presumption of economic incapacity for the purposes of exemption from bail pursuant to art. 325, paragraph 1, subsection I cc. Art. 350 of the Code of Criminal Procedure;
(ii) or, (…) it is not possible to maintain custody of the custody solely because of the non-payment of the amount arbitrated as security, even if the defendant is poor, ex vi of art. 350 of the CPP “.

Side effect

Lawyer and professor Roberto Delmanto Jr. affirms that Law 12,403 / 2011, created with the objective of disciplining precautionary measures of the CPP, ended up generating a kind of self-indulgence in police authorities and judges, as if it were possible to keep people prisoners without having to substantiate measure. He says that not only do poor people live this situation: the businessman Eike Batista was supposed to pay R $ 52 million to remain under house arrest, for example.

For lawyer Roberto Delmanto Jr., bail is sometimes used comfortably to avoid the grounds of precautionary measures.
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Delmanto feels that there is already a change of conscience in judges, more attentive to Article 350 of the CPP: “The judge, verifying the economic situation of the prisoner, may grant him provisional liberty.” Regarding the Defensoria’s proposals, the lawyer understands that releasing the release of those who have not yet paid bail would end the use of the instrument in practice.

The delegate and professor Ruchester Marreiros Barbosa, ConJur columnist, also reports that a drafting problem in the 2011 law ended up leaving more people behind bars: as the same article 350 expressly quotes “the judge”, the controversy is whether the police authority may or may not apply the device to waive bail.

Delegates who follow the text literally, according to Barbosa, can make prisoners wait more than 15 days for a favorable decision – minimum time in which the investigation goes to the judicial notary, goes to the Public Prosecutor and becomes a complaint.

Literal interpretation of Law 12,403 / 2011 leaves more people behind bars, says delegate Ruchester Marreiros Barbosa.

He is against such a restrictive position. “I do not ignore the article, but I apply it isonomically. Our role is to reproduce the economic model or guarantee fundamental rights? ”

The delegate considers “interesting” the proposal of a summary of the Ombudsman’s Office, but understands that assuming the hypersufficiency of all represented by the institution can also be a misnomer. The best way, for him, would be to streamline the analysis of each case.

Abuse of authority

Abuse of authority

In 2013, the Public Defender of São Paulo approved an institutional thesis stating that the fixing of bail should generate immediate release of release permit. According to the text, “conditioning the release to bail is illegal and, strictly speaking, constitutes a crime of abuse of authority.”

Defender Bruno Martinelli Scrignoli, of Campinas (SP), used the argument when requesting HC to an unemployed man suspected of receiving, unable to pay a minimum wage. “Only two are the chances of legal imprisonment: i) arrest in flagrante and ii) arrest by a court order substantiated. In the case of the person arrested for not paying the bail, there is neither one thing nor another, “he said. Minister Antonio Saldanha Palheiro agreed with the argument, still in 2016.

Minister Joel Ilan Paciornik, on May 19, rejected a preliminary injunction against a man arrested for attempted theft in April, with bail set at R $ 940. Without seeing an illegal “manifest and detectable plan”, the rapporteur followed the Precedent 691 of the Federal Supreme Court, which places barriers to the analysis of applications not yet judged by a collegiate body in lower courts.