Provisional freedom: with or without bail

Provisional freedom cases with or without bond the light of Criminal and Criminal Procedural Law.

Provisional freedom cases with or without bond the light of Criminal and Criminal Procedural Law.


When it comes to institutes of provisional liberty and bail, there are many questions about its practical application. This is because the Code of Criminal Procedure is not expressed with respect to its application, that is, it does not say which crimes admit bail and / or provisional liberty, but which they do not admit. Therefore, the institutes’ interpretation must be made “a contrario sensu” and, in light of the absence of the requirements of art. 311 and 312 of the CPP, which allow for the preventive detention of the accused, which makes their understanding more difficult.

Provisional release with or without bail is an institute of criminal procedural law which grants freedom under certain circumstances to the defendant who is about to be arrested or has been arrested, in flagrante delicto, or as a result of a sentence of pronouncement, or sentence but has not yet become final. On the other hand, it is incompatible with preventive prisons (provisional or preventive) by nature. In order to grant provisional release, however, it is necessary to analyze the legal requirements of articles 311 and 312 of the CPP, “a contrario sensu”, that is, absent any of those requirements necessary for the maintenance of the custody prison, should be granted freedom provisional, with or without bail, depending on the type of crime. This is called “a contrario sensu” interpretation.

Well, at first any crime admits provisional release without bail. This is because the Constitutional Principle of Innocence must prevail, which says that no one is guilty until condemned by a final criminal conviction, so the rule is freedom and must always be respected. In addition, provisional release without bail can only be granted by the judicial authority, provided that based on the cases of art. 310 of the CPP (cases of exclusion of unlawfulness – art.23 CP) and its unique § that refers to the requirements of art.311 and 312 of the CPP. Thus, the judge may grant provisional liberty, to any criminal, regardless of the crime committed, provided that the decision is based on the law. After all, in theory, there is no insusceptible crime of provisional release without bail, which exist are personal circumstances of the accused, which will be analyzed in each concrete case by the judge, and that may make it unsusceptible of provisional freedom.

Provisional release on bail is different. This is because there are non-enforceable crimes, by express legal determination, and unspeakable crimes. Thus, depending on the crime, provisional release can be granted on bail, even by the police authority. For non-bailable crimes, bail can not be granted, not even by the judge, that is, if there is a need to release the defendant, the judicial authority must do so without, however, arbitrating any bail. Ista is the rule.

But what are the cases of provisional release on bail? At first, all crimes that are detained with imprisonment, irrespective of the size of the sentence, or simple imprisonment, admit bail. Also, they admit bail all crimes whose minimum sentence is confinement, provided that it is less than 2 years. A contrario sensu, all offenses punishable by imprisonment, whose minimum sentence is equal to or greater than 2 years, do not admit bail, although they are susceptible of provisional freedom without bail. The heinous crimes, drug trafficking, torture and racism, do not admit bail. Tax crimes and crimes against the financial system, even if punished with detention, also do not admit bail. Thus, crimes that do not admit bail are the most serious crimes and, despite their seriousness, provisional release without bail may be granted by the judicial authority, in cases where the law so permits. And the law here must be considered as a whole, that is, the Criminal Law in harmony with the Criminal Procedure Law and the Federal Constitution.

But what, after all, is bail? Guarantee is a substitute for certain procedural prisons (flagrant, as a result of pronouncement and as a result of conviction), represented by a security in cash or precious goods, paid by the defendant to the State, to temporarily replace his custody, in the cases provided by law. It also seeks to ensure, in the event of conviction, the payment of the costs of the proceedings, possible fines and, if possible, compensation to the victim or his / her family for ex delicate damages. It is, in short, a civilized way of replacing the precautionary prison with that which has not yet been definitively condemned for a particular good of value (money or precious goods), until the sentence has been passed.

And when the provisional release is granted, what are the legal conditions imposed on the defendant so that he can get rid loose? The defendant must comply with some judicial decisions, therefore, the name of the institute, because freedom is provisional, that is, under certain circumstances (regular attendance to justice, prohibition of travel without judicial authorization, prohibition of attending certain places, etc.)…), his freedom is granted although in part reduced in certain respects. That is, to maintain it, even if provisionally, it is necessary to accept and comply with the legal conditions imposed by the judge. If it were not so, it would not be provisional freedom, it would be absolute.

Lastly, it is not possible to speak of provisional freedom in the event of a provisional (preventive) injunction ordering the natural incompatibility of the institutes. Therefore, in case of unlawful arrest, it will only be a relaxation of the arrest by the judge (or ex officio), or even the granting of Habeas Corpus, depending on the specific case.