A atual conjuntura da fiança criminal no ordenamento processual penal brasileiro

Abstract

This study aims, through the means of a literary review, to analyze the current state of the institute of criminal bail in Brazil. The Brazilian prosecution system was originally based on the presumption of guilt of the criminal defendant. The current Code of Criminal Procedure, dated from 1941, was developed during a period when several individual guarantees were not consolidated. The presumption of innocence is one example, only effectively legislated with the advent of the Federal Constitution of 1988. Before that, any individual submitted to investigation or prosecution would have to be taken to jail, and would only have the possibility of obtaining temporary freedom through bail. Thus, when the law stated that a crime was not bailable, the result was the maintenance of prison until the judge´s verdict. The Law number 6.416/77 created, for the first time, the possibility of obtaining freedom without having to pay bail. After that change, the provisional prison became an exception in criminal procedures, while freedom has become the rule. At that point, we started to question the usefulness and necessity of the institution of criminal bail. Scholars began to claim the total loss of the applicability of the institute and the need for legislative reforms to reinvigorate it. The most current and complete Law about the theme is the Law number 12.403/2011. This law brought some undeniably positive innovations concerning the institute. However, there are still some censurable points regarding the institute. A complete and integral legislative reform is needed.