A fiança processual penal após o advento da lei 12.403/11: sua natureza jurídica, o paradoxo dos crimes inafiançáveis e outros pontos polêmicos

Abstract

It discusses about the criminal bail, after the reform of the Code of Criminal Procedure peformed by the Law 12.403/11, under the mantle of the modem constitutional aegis, in which the freedom is a rule and the arrest, exception. Succinctly, it describes the main changes introduced by the new law and the system of provisional detention on brazilian soil, noting that, in principle, only there will be preventive prison for intentional crimes whose maximum penalty provided in the abstract exceeds 4 (four) years of imprisonment, and waming also that this excludes many crimes, even that punished with reclusion. It exalts who the law amending the Code of Criminal Procedure also innovated by bringing in its bulge the appointment of 9(nine) precautionary measures, prison several, which became the last option applicable by the magistrate, noting, furthermore, that among these measures figured the ancient criminal bail, which had long been relegated to the background, having almost fallen into disuse, and now, it is hoped, will receive new impetus, given its reinvigoration. It investigates the legal nature of the criminal procedural bail, confirming its characterization as a precautionary measure and compare her to the institutes charge and condition of civil law, suggesting then that the bail, inexorably, it would be a procedural patrimonial onus. It presents the criminal bail as appropriate institute to the criminal prosecution, able to link the accused to the process, giving his the expected effectiveness, largely because of the close bond between the depletion of many offenses and the deposit of real guarantee, to bail the court prosecuting, wich is, the patrimonial nature that they have: The first, in prejudice to the victims; The second, in detriment of the accused's pocket, perhaps even, reaching the proceeds of crime. It risks a proposed solution to the so-called paradox of the non-bailable crimes, noting that the legislative effort embodied in the law commented attenuated some inconsistencies as to the applicability or not of the bail for certain crimes, especially because of its severity in the abstract, determined by the quantum of penalty that imposed on them, however, has not overcome the inevitable consequence of labeling a crime as a non-bailable, which is, the granting of provisional freedom without bail, even if it is the most serious. It also comments on recent controversies, arising in relation to bail, after the advent of the new law of criminal procedure.