Art. 326. In order to determine the amount of the bail, the authority will take into account the nature of the infraction, the personal circumstances of the accused’s fortune and former life, the circumstances that indicate his dangerousness, as well as the probable importance of the costs of the process, until the final judgment .
The criteria for setting the value
Criteria for determining the bail amount: The bail amount cannot be randomly determined. The nature of the infraction, the personal circumstances of the accused’s wealth and past life, the circumstances that indicate his dangerousness, as well as the probable importance of the costs of the process until the final judgment must be considered. Bearing in mind that the money or objects given as surety will serve to pay compensation for the damage, if the defendant is convicted ( article 336), the value of the damage caused by the crime must also be considered. All of these factors are important, but arguably the two most important are the defendant’s financial condition and the amount of damages. Those who can more pay more, and those who can less pay less. As for dangerousness, it concerns the probability that the accused will commit new crimes.
Setting an excessive amount: It is not lawful to set a value that the accused is unable to pay, as that would be equivalent to denying the right to bail.
Setting too low a value: It should not be set at a very low value, such that the loss of half of its value is of no significance to the accused.
Jurisprudence
Guarantee without considering the economic capacity of the agent. Defect in the absence of adequate grounds: The precautionary measure of the bail, maintained without taking into account the economic capacity of the agent, suffers from the defect of lack of adequate grounds ( HC 114.731/SP, rel. min. Teori Zavascki, judged on 1º-4 -2014, judgment published in the DJE of 15-4-2014 – Newsletter 741, Second Panel).
Provision of assistance by the Public Defender allows us to assume the patient’s hyposufficiency. Non-payment of bail by those who are able does not justify precautionary arrest: The provision of assistance by the Public Defender’s Office makes it possible to assume the patient’s hyposufficiency. If he does not have the financial conditions to pay the bail amount, nothing justifies the imposition of precautionary arrest for this sole reason ( HC 129.474, rel. min. Rosa Weber, judgment on 9/22/2015, judgment published in the DJE of 13 -10-2015 – Bulletin 800, First Panel).
