Although Federal Law no. 11.340 / 2006  has expanded the protection of women against gender violence, practiced in the domestic and family spheres, we have that everyday forensic presents us with unusual situations, where we clearly see the disrespect to the most basic rights of women.
I was recently surprised in the corridors of the forum, when I closed the forensic file, by a woman who carried in her arms a child of tender age (three months) and in her body the marks of the brutality that was imposed on her. The bruises and erythema on the face, shoulder, arms and back have already allowed a glimpse of what happened.
After the meeting had taken place, I found that she had been the victim of repeated assaults perpetrated by her companion, with whom she had three children in common, and on behalf of whom she endured for many years the tortures that were cowardly inflicted upon her.
In a brief summary of what happened, it is noted that the night before, again impelled by alcohol, his companion physically assaulted her, causing several injuries. Discontented with the regrettable situation to which she was subjugated, she decided to end the cycle of violence, triggering, for the first time, the military police.
Conducted to the police station was drawn the flagrant and arbitrated bail for the aggressor, who was released immediately after collecting the value in a notary. Further aggravating the situation of vulnerability of this poor woman, the defendant returned home and, arriving before the victim, prevented her entry, leaving her on public roads, only in the clothes she wore and in the company of her new offspring.
When this fact became known to the Public Prosecutor’s Office, the pertinent legal measures were taken, and the offender was removed from the conjugal home, thus ensuring that the victim had the minimum respect for the rights provided for in Federal Law 11,340 / 2016.
In addition to the endless misunderstandings in this case, it is worth asking if the police authority acted well in arbitrating bail to the assessed.
With the reform undertaken by Law no. 12,403 / 2011, the police authority has the possibility of arbitrating bail in cases of infraction whose deprivation of liberty does not exceed four years, pursuant to art. 322 of the Code of Criminal Procedure. In criminal offenses with a penalty greater than this amount, the judge shall decide within 48 (forty eight) hours.
It occurs that in the great majority of offenses perpetrated against women in the domestic and family environment, the penalty does not exceed the level of four years. This is reflected, for example, in the secondary precepts of threatened crimes (article 147 of the Penal Code: Penalty – imprisonment of one to six months or a fine), insult (article 140 of Penal Code: Penalty – detention of one to six months or a fine) and personal injury (article 129, § 9, CP: Penalty – detention from three months to three years).
In this context, it is asked : Would the Delegate be obliged to grant bail in these cases?
The negative answer is necessary.
According to the provisions of art. 324 of the CPP, no guarantee will be granted when the reasons authorizing the execution of the preventive custody are present (article 312).
As is the case, one of the hypotheses authorizing the adoption of protective custody is precisely the crime involving domestic and family violence against women, children, adolescents, the elderly, the sick or people with disabilities, in order to guarantee the implementation of urgent protective measures.
In this way, the police authority may deny bail based on its position, under the terms of art. 324, subsection IV, cc art. 313, subsection III, cc art. 312, all of the CPP, and must demonstrate the presence of one of the grounds for ordering custody custody.
Regarding this, there are no major problems. The reverse situation, however, is not peaceful.
Facing the above situation, could the police officer have bailed out the assessed party?
Part of the doctrine maintains that it is not possible for the police authority to arbitrate bail in cases that involve domestic and family violence against women, since this hypothesis would allow for the enactment of preventive custody (article 313, item III, CPP), and the concession (article 324, item IV, of the CPP).
In this sense, the Permanent Commission to Combat Domestic and Family Violence against Women (COPEVID), created by the National Human Rights Group (GNDH) of the National Council of Attorneys General (CNPG), aims to contribute to the standardization of domestic violence against women, published Statement n. 06 dealing precisely with the impossibility of guarantee, in the following terms:
Impossibility of guarantee
Statement No. 06 (006/2011):
In cases of domestic and family violence against women, children, adolescents, the elderly, the sick or persons with disabilities, the granting of bail by the Police Authority is forbidden, considering that this is a situation that authorizes the execution of preventive detention pursuant to article 313, III, CPP. (Approved in the Plenary of the IV Ordinary Meeting of the GNDH of 07/12/2011 and by the Collegiate of the CNPG of 01/19/2012).
The prosecutor Fausto Rodrigues De Lima, in dealing with the subject, considered that the granting of bail by the police authority in cases of domestic violence against women, would represent a usurpation of the jurisdictional function, as transcribed below:
“The delegate is barred from granting bail, so that provisional freedom has once again become a matter of exclusive jurisdiction, with no exceptions, at least with regard to domestic violence.
In fact, the new norm established the possibility of pre-trial detention for all crimes committed in domestic violence, including those detained with detention, by adding the following device to art. 313 of the CPP: IV – if the crime involves domestic and family violence against women, under the terms of the specific law, to ensure the implementation of urgent protective measures.
And, in a redundant and eloquent manner, it has been determined that preventive detention may be ordered or revoked by the judge as many times as necessary, taking into account justifying reasons (article 20).
Indeed, all crimes punishable by detention are now subject to pre-trial detention, under the terms of the aforementioned art. 313, inc. IV, CPP. Even if the accused are not “idle” or already “convicted of felony crime”, they may be arrested by court order. Therefore, no guarantee will be granted if the requirements of pre-trial detention are present (article 324, IV, CPP), an assessment that must be made by the judge, in terms of the aforementioned art. 311 of the CPP. In the absence of these requirements, only the magistrate must release the accused, regardless of the setting of bail, in terms of art. 310, sole paragraph, of the CPP.
Therefore, the legislature returned to the judge the exclusive power to decide on the maintenance of the prison in domestic violence. The new law repudiated both the 1977 system, which allowed the police to arbitrate bail, and that of 1995 (JECrim), which guaranteed freedom with the simple commitment of attendance. Both were not concerned with the integrity of the victims, even because they would have left the judge with the precautionary power to decide whether release was convenient or reckless “(De Lima, 2014).
In the same direction, the prosecutor Jorge Romcy Auad Filho is positioned, in an article prior to the reform promoted by Law 12,403 / 2011, but whose rationale is still maintained:
“Allowing for arbitration of bail by the police authority, in case it is possible to issue a preventive detention, besides causing distortion of the legal system, will still lead to perplexity in contradictory positions, as well as usurpation of the judicial function of the judge.”
“In the cases provided for in Law No. 11,340 / 2006, the granting of provisional release is the exclusive competence of the judicial authority, and the bailiff does not have to file a bail, in view of the judge’s need to investigate in advance the possibility of maintaining the provisional arrest
When eventually granting provisional release to offenders who commit domestic violence crimes, the judges, analyzing the specific case, must condition their release to comply with measures that effectively protect the victim and other family members “(AUAD, 2007).
It should be noted that although art. 313, item III, of the CPP establish among the hypotheses of admissibility of preventive custody cases that “the crime involves domestic and family violence against women… to ensure the execution of urgent protective measures”, its interpretation should be made to the light of the grounds established by art. 312 of the same decree, that is, the execution of a precautionary custody will only be possible if the presence of the guarantee of public order, convenience of criminal investigation and guarantee of application of criminal law is demonstrated.
“In our opinion, item III should be read in conjunction with the content of the caput of art. 3 1 3 of the CPP, which expressly refers to the terms of art. 312 of the Code. Now, if the caput of art. 313 makes reference to the terms of art. 3 1 2 of the CPP, means that even in cases of domestic and family violence against women, children, adolescents, the elderly, the sick or people with disabilities, the enactment of preventive custody is also conditional on demonstrating the need to impose custody to ensure public order, for the convenience of criminal investigation or to ensure the application of criminal law “(LIMA, 2015, p.951).
In view of this, it will not be the mere fact of the crime to be practiced in the domestic and family spheres against the woman who will represent an obstacle to granting bail by the police authority, since item IV of art. 324 of the procedural document establishes that no guarantee will be granted when the reasons authorizing the enactment of preventive custody are present (article 312).
In this sense, there is the lapidary teaching of Renato Brasileiro de Lima who, in supporting the possibility of granting bail by the police authority, teaches:
“If art. 322 of the CPP provides that the police authority may grant bail for criminal offenses whose maximum penalty does not exceed four (4) years, no other requirement can be established for the grant of said benefit, otherwise the violation of the principle of legality. Moreover, the mere fact that a crime is subject to the enactment of preventive detention is not an obstacle to the granting of bail by the police authority. The art. 324, IV, of the CPP, prohibits the granting of bail only when the reasons authorizing the preventive, read, guarantee of public order, economic order, convenience of criminal investigation or guarantee of application of criminal law – notice that the device itself refers to art. 3 1 2 of the CPP – without establishing any relation with the hypotheses of admissibility of the preventive custody provided for in the subsections of art. 313 of the CPP. Therefore, the police authority can not deny bail on the simple argument that the crime was committed in the context of domestic and family violence (CPP, article 3 1 3, III). In addition, it should also demonstrate that there had been non-compliance with the previous protective measure of urgency imposed by the judge and that the permanence of the perpetrator in freedom could, for example, jeopardize the guarantee of public order, given the possibility of repeated conviction (CPP, article 312) “(LIMA, 2015, p.951). the police authority can not deny bail on the simple argument that the crime was committed in the context of domestic and family violence (CPP, article 3 1 3, III). In addition, it should also demonstrate that there had been non-compliance with the previous protective measure of urgency imposed by the judge and that the permanence of the perpetrator in freedom could, for example, jeopardize the guarantee of public order, given the possibility of repeated conviction (CPP, article 312) “(LIMA, 2015, p.951). the police authority can not deny bail on the simple argument that the crime was committed in the context of domestic and family violence (CPP, article 3 1 3, III). In addition, it should also demonstrate that there had been non-compliance with the previous protective measure of urgency imposed by the judge and that the permanence of the perpetrator in freedom could, for example, jeopardize the guarantee of public order, given the possibility of repeated conviction (CPP, article 312) “(LIMA, 2015, p.951).
Judge Augusto Yuzo Jouti, in a specific article on the subject, defends the possibility of bail be arbitrated by the police authority in cases of domestic and family violence against women, arguing that the apparent inconvenience of granting bail police, with subsequent enactment of the arrest preventative by the magistrate, can not be supported by the investigated. The delegate should, in the case of bail arbitration, guarantee police protection to the victim (article 11 of Law 11.340 / 2006).
“Once bail granted by the police delegate, it is incumbent on him to guarantee police protection, according to art. 11 of the Maria da Penha Law. And there is nothing to prevent the Judge of Law – the only competent authority from ordering preventive detention, provided that the police authority or the Public Prosecutor presents concrete elements that indicate their suitability and necessity, in accordance with articles 312 and 313 of the Code of Criminal Procedure. The apparent inconvenience of releasing the prisoner by bail and subsequently arresting him in a preventive manner is not an expression of the law nor can it be borne exclusively by the investigated.
The Code of Criminal Procedure does not expressly prohibit the granting of bail by the police authority, so much so that there is Bill no. 6,008 / 2013, to amend Law no. 11.340 / 2006, in order to assign to the Judge only this examination. As long as there is no legislative change, Article 322 of the Criminal Procedure Code continues to authorize police bail for crimes up to four years, including for crimes involving domestic violence against women “(JOUTI, 2015).
With due respect, the solution presented to conciliate the bail police with the necessary protection to the victim, does not convince. In the first place, it is imperative to expose the insufficiency of the police force to guarantee the protection of the victim. Secondly, since there is no judicial provision that prevents the perpetrator from returning to the conjugal home or from approaching the victim, what would this police protection be like? Should a police officer stay inside the residence, along with an assailant and victim in order to preserve his or her physical integrity? Or should the woman be victimized again, this time being taken from the home while awaiting the deferral of protective measures of urgency?
The logical order of things is reversed by granting freedom to the aggressor in a premature manner, giving the State the duty to protect the victim against any action by the latter prior to the deferral of protective measures of urgency.
Faced with the seriousness of bail arbitration in the case of gender violence, the Joint Parliamentary Commission of Inquiry (CPMI), constituted to investigate situations of violence against women in Brazil, presented Bill no. 6.008 / 2013, in progress in the National Congress, to amend Law 11,340 / 2006 expressly prohibiting the granting of bail by the police authority in cases of domestic and family violence against women, aiming to improve the legal framework that will allow Brazil to maintain at the forefront of the legislative framework.
It should also be noted that the justification presented by the Joint Parliamentary Committee of Inquiry states that “Art. 324, IV, which prohibits the establishment of bail when the requirements of pre-trial detention are present, already prevents the police authority from obtaining bail in the crimes and situations of art. 313 of the CPP, “although” the justice system has disregarded this command to tolerate the immediate freedom of the aggressors in the police station itself, a fact that has caused the continuation of violence and even the murders of women after the payment of bail by the police. “
“In addition, it adds a mechanism to the CPP to prohibit bail-out by the police authority in cases of domestic and family violence against women, to ensure greater protection for victims at the time and soon after the criminal conflict.
It is a fact that art. 324, IV, which prohibits the establishment of bail when the requirements of pre-trial detention are present, already prevents the police authority from obtaining bail in the crimes and situations of art. 313 of CPP (includes domestic violence in item III), since the analysis of the requirements of pre-trial detention is a matter of judicial jurisdiction. In such cases, it is the judge who must evaluate the case in advance, as determined by art. 310 of the CPP, and may even apply protective measures substitutive of the prison provided for in the Maria da Penha Law. However, the justice system has disregarded this command to tolerate the immediate freedom of the aggressors in the police station itself, a fact that has caused the continuity of the violence and until the murders of women after the payment of bail arbitrated by the police. Like this,.
By making a systematic interpretation of the legal system and considering the normative changes, which denote the evolution of the procedural legislation, aiming at giving greater protection to women in situations of vulnerability, it is concluded that making bail arbitration by the police authority a routine practice, to the spirit that guided Law n. 11.340 / 2006, interpreting the changes promoted by said normative document to the detriment of its addressee. This hermeneutical inversion confronts the principles of the prohibition of insufficient state protection and non-retrocession, relegating to forgetfulness the situation of vulnerability of women victims of domestic and family violence.
Therefore, it will be for the magistrate to promote the analysis of the concrete case to decide if the protective measures foreseen in art. 22 of Law 11,340 / 2006, as well as possible precautionary measures different from the prison provided for in art. 319 of the CPP, are adequate and sufficient for the protection of the victim or if the enactment of pre-trial detention is the only measure that proves capable of protecting the physical and psychological integrity of the woman, preventing a repetition of the cycle of violence.
If these prove to be inadequate or insufficient, the magistrate shall convert the prison in flagrante into a preventive, under the terms of art. 310, item II, of the procedural document. Otherwise, it will grant the accused the provisional freedom conditioned to the fulfillment of these diverse measures of the prison.
It happens that until the magistrate promotes the analysis of the urgent protective measures pleaded, at least in theory, one of the foundations of the precautionary custody (public order guarantee  ) will be present, being indispensable the maintenance of the prison to guarantee the physical and psychological integrity of the offended person, until the deferment of emergency measures for his benefit, intimidating the aggressor of its content, by virtue of periculum libertatis.
Thus, if there is an application for deferral of urgent protective measures, the police authority is unable to grant the accused the provisional release by means of bail, since it can not replace the judicial authority and understand, for example, that it will suffice to impose on the aggressor the removal of the conjugal home and prohibit her from approaching the offended and her relatives, setting the minimum distance between them and the aggressor, and custody is not necessary.
Such activity is the exclusive responsibility of the judicial authority.
The opposite view will leave the victim in a state of absolute vulnerability, since granting the aggressor freedom before considering the request for urgent protective measures, will allow him to return to the conjugal home, approaching the victim and his relatives, a situation that will further accentuate plus the trauma suffered as a result of the aggressions perpetrated, in addition to jeopardizing the effectiveness of any precautionary measures imposed by the magistrate.
In this context, the possibility of granting bail by the police authority can not be strictly forbidden, but this should be reserved for exceptional cases, where the peculiarities of the case show the absolute need to maintain prudential segregation and the absence of grounds for preventive detention order.
The most routine cases are domestic disputes, often watered by alcohol, where the woman imputs to her cohabitee the practice of the crime of threat, a fact corroborated by witnesses. At the police station, he makes statements and offers representation regarding the crime described in art. 147 of the Criminal Code. Hours later, away from the momentary exaltation that followed the discussion, he returns to the police unit, talks to his companion resuming the relationship and decides to portray himself from the representation.
Imagine that the flagrant is still being drafted, we know that the Police Commissioner can not accept the victim’s retraction, since “in public criminal actions conditioned to the representation of the offended that this Law treats, only the resignation of the representation before the judge, in an audience specially designated for such purpose, before receiving the complaint and hearing the Public Prosecutor’s Office “, pursuant to art. 16 of Law 11,340 / 2006 “.
In this hypothetical situation, when there is no request for an urgent protective measure and there is a withdrawal of the representation, there would be no obstacle to the granting of bail to the assessed by the police authority itself, since the freedom of the latter will not represent any risk, since there will be no measure to be ensured through precautionary segregation.
After these considerations, we present the following solution regarding the granting of bail by the police authority in crimes involving domestic and family violence against women:
As a rule, the police authority should not grant bail in cases of domestic and family violence against women, children, adolescents, the elderly, the sick or persons with disabilities, as it will be for the judicial authority to promote the analysis of the specific case to decide whether measures protective measures set forth in art. 22 of Law 11,340 / 2006, as well as possible precautionary measures different from the prison provided for in art. 319 of the CPP, are adequate and sufficient for the protection of the victim or if the precautionary custody is the only measure able to protect the offended, and the delegate can not replace the Judge in that evaluation.
In exceptional cases, where the peculiarities of the concrete case demonstrate the absolute necessity of maintaining the precautionary segregation (lack of grounds for enactment of preventive detention) and provided that there is no request from the victim for the purpose of granting urgent protective measures, to arbitrate the bond.
Finally, it is concluded that, in the case narrated in the introduction of this article, the police authority was wrong to grant bail to the assessed, victimizing even more that woman already physically and morally flogged, because of the injuries suffered, as well as exposing them to life-threatening circumstances by granting provisional release on bail, before the judge’s assessment of protective measures of urgency .