Provisional freedom is a legal entitlement given to the accused or defendant, allowing them to participate in legal proceedings while not in custody, even if they were initially arrested.
The measure, as outlined in the Code of Criminal Procedure (CPP), ensures a balance between the necessity of limiting freedom and the presumption of innocence.
We discuss the key points of temporary release in this article, such as its conditions, legal basis, and the lawyer’s role in ensuring this right for their client.
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Requirements for receiving Temporary Release
Provisional freedom is when an inmate is granted freedom before the conclusion of the legal process, as long as the conditions for preventive detention are not met.
Provisional release can be given with or without bail, as stipulated in Article 321 of the CPP, and is contingent on not meeting the conditions for pretrial detention.
The primary conditions for your grant are:
- Agent periculocity not present.
- No repetition of criminal behavior.
- The crime has a low level of seriousness (no violence or serious threat involved).
- Guaranteeing public and economic stability.
- No risk to law enforcement from absence.
Provisional freedom should be granted if there are no legitimate reasons for detention.
Types of Temporary Liberty
Provisional liberty is a concept in criminal procedural law that permits the defendant to participate in the legal proceedings outside of custody, as long as they fulfill the necessary legal criteria.
The main modalities are as follows:
Provisional liberty during childhood
The bail is a monetary amount given by the defendant to secure their release during the legal proceedings, and it can be determined by the police official or the judge based on the severity of the offense.
The regulations can be found in Articles 321 through 350 of the CPP.
Key points:
- The bail amount depends on the seriousness of the offense and the financial situation of the defendant.
- The payment can be utilized for procedural costs and compensating the victim if the offender is found guilty.
- Failure to adhere to the conditions set forth could lead to the forfeiture of the deposited amount and the imposition of pretrial detention.
Provisional Freedom devoid of Childhood
Provisional release without bail is granted when pretrial detention is deemed unnecessary, the offense is minor, or the accused cannot afford bail.
Key elements:
- Article 350 of the CPP allows for the release without bail at the judge’s discretion.
- Often applied in cases of offenses of lower offensive potential.
- It can be approved when bail is applicable, but the defendant shows financial insufficiency.
- Other precautionary measures can still be imposed despite this.
Provisional release with precautionary measures
With the reform introduced by Law 12,403/2011, the judge has the authority to release a defendant temporarily while imposing specific precautionary measures, as outlined in Article 319 of the Criminal Procedure Code.
These measures are designed to guarantee the smooth advancement of the proceedings without necessitating the detainment of the accused.
Precautionary measures to take:
- Periodic evaluation in assessment to provide information and support its actions.
- Avoiding contact with victims or witnesses is prohibited to prevent any interference in the legal proceedings.
- Avoidance of going to specific locations, like the site of the crime.
- Home visits are scheduled for specific times, such as evenings or weekends.
- Electronic surveillance involves the use of an electronic ankle bracelet for monitoring movements.
- Suspension of carrying out public duties or economic activities connected to criminal behavior.
Not following these measures could lead to the cancellation of temporary release and the imposition of the defendant’s pretrial detention.
The decision on whether to grant bail, impose preventive measures, or release the accused without bail is based on factors such as the severity of the crime, the individual’s criminal record, the risk posed to society, and the advancement of legal proceedings.
The system aims to maintain a balance between protecting individual rights, ensuring legal certainty, and serving the public interest.
Role of the Attorney in Temporary Release
The defense needs to act promptly to secure the client’s release by employing tactics that show there is no need for them to be kept in prison.
The lawyer’s practice includes:
Auto Prison Analysis in Flagrante – Analysis of Car Imprisonment
The lawyer needs to investigate any irregularities in the police conduct and the blatant approach.
- Prison without a valid reason.
- Violation of prisoners’ rights.
- Flagrant counterfeited or unlawful.
If there is any unlawful activity, the release from prison should be mandated promptly.
Request for temporary release
The lawyer needs to prove that there are no reasons for detention and request provisional release, with or without bail, if the arrest is lawful.
Primary reasons for the petition:
- Primary rule and strong foundation.
- Stable residence and legitimate employment.
- Non-violent or non-threatening criminal activity.
- No danger to public safety, criminal justice, and law enforcement.
Alternative Safety Precautions Request
The defense can propose preventive measures outlined in Article 319 of the CPP to prevent the prison from becoming a pretrial detention facility if there is no obstacle to release.
Appeal for Income Case
Defense can be possible when freedom is not allowed.
- Prevent habeas corpus in order to ensure the accused’s freedom.
- To challenge the ruling in the appropriate court.
- To repeat the request due to new information or changes in the accused’s situation.
Practical advice for attorneys advocating for Temporary Release
Obtaining temporary release as a lawyer demands expertise, strategic planning, and promptness in handling the process.
To enhance customer protection, follow some practical advice.
Immediate action caught in the act
- Go to the police station immediately upon discovering the jail.
- Ensure that the prisoner’s rights are upheld, including informing their family and the right to remain silent.
- Request entry to Flagrante Prison Auto (APF) to uncover any inconsistencies.
Analysis of the necessary conditions for preventive imprisonment
- Assess if there is a valid basis for transforming prisons into preventive institutions.
- If the necessary conditions are lacking, provisional freedom must be granted with justification.
- Negotiate alternative precautionary measures with the judge in case of a plea.
Preparation of a thorough request for temporary release.
- Incorporate recent legal decisions to support the ruling.
- Emphasize the defendant’s primary residence and legal activities, if relevant.
- Argue using the presumption of innocence principle and the exceptional nature of pretrial detention.
Employing cautary measures as a tactic.
- Suggest precautionary measures as a substitute when provisional freedom is being opposed.
- Specify particular actions suitable for the specific situation, such as electronic surveillance or regular court appearances.
Challenging Negative Rulings
- If the plea for liberty is rejected, petition for habeas corpus promptly.
- Provide strong reasoning and illustrate the disproportionate nature of prison demographics.
- Refer to the Court of Justice or Superior Courts if needed.
Process Monitoring and Defense Report Update
- Monitor the defendant’s situation closely and repeat requests as needed.
- If more evidence is available, ask the judge to reassess the decision.
- Maintain regular contact with both clients and loved ones to ensure expectations and plans are in sync.
With careful and skillful effort, the lawyer can greatly improve the likelihood of securing temporary release for the client, guaranteeing the protection of their rights and preventing unwarranted detentions.
The lawyer plays a crucial role in advocating for Provisional Freedom.
Provisional liberty is a basic entitlement in legal processes and should be provided unless there is a necessity for pretrial detention.
The lawyer is crucial in protecting the rights of clients and upholding the presumption of innocence.
By using technical reasoning and strategic planning, the defense can prevent the accused from undergoing unnecessary detention in prison, thereby guaranteeing a just and fitting punishment.
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What does temporary freedom mean?
Investigated or defendants have the right to provisional freedom, allowing them to participate in legal proceedings outside of custody, even if initially arrested.
The CPP anticipates this and aims to strike a balance between the necessity of limiting freedom and the constitutional principle of presumption of innocence.
What are the basic conditions for providing temporary release?
The basic conditions for temporary release include the absence of danger from the individual, no involvement in serious crimes, minor severity of the offense, maintenance of public order, cooperation with law enforcement, and no need for preventative detention. Temporary release is allowed when there are no reasons for immediate imprisonment.
How should the attorney behave immediately following the arrest in an obvious manner?
The lawyer should act promptly following an arrest in flagrante, which includes: promptly going to the police station upon learning of the arrest; ensuring the prisoner’s fundamental rights are being upheld (such as communication with family, right to remain silent, and physical well-being); requesting access to the Auto Prison in Flagrante (APF) to check for any irregularities in the process; reviewing the legal charges brought by the police; considering the possibility of setting bail with the delegate; and starting to gather necessary documents proving residence, employment, and good character. Acting quickly can help prevent the conversion of arrest into pre-trial detention, improving the chances of obtaining temporary freedom.
How can the attorney create a successful request for temporary release?
An effective application for temporary release should include: A detailed analysis of the specific case emphasizing the lack of justification for pretrial detention; A strong legal basis supported by relevant case law; Emphasis on the defendant’s rights, residence, and lawful activities; Arguments based on the presumption of innocence and the exceptional nature of pretrial detention; Supporting documents for all claims (proof of residence, employment contracts, background checks); Optional alternative measures if the judge deems caution necessary; A clear and concise request that is easy for the judge to understand; Technically accurate and strategic to address potential objections and offer counterarguments.
What steps should the lawyer take if the request for temporary release is rejected?
If the request for temporary release is denied, the attorney should explain the decision’s rationale in detail to pinpoint weaknesses; Immediately challenge the lack of grounds for pretrial detention by filing a habeas corpus petition; Present strong arguments showcasing the disproportionate nature of imprisonment; Appeal to the Court of Justice if the initial habeas corpus petition is rejected; Pursue further appeals in the Superior Courts if needed (STJ and STF); Stay attentive to strategic shifts that could warrant new motions; Renew the plea for provisional release if new evidence or favorable points emerge; Maintain a vigorous stance, persisting beyond initial setbacks and exploring all available legal avenues.
Under what circumstances is bail not allowed according to Brazilian law?
Bail cannot be granted in certain cases according to Article 323 of the CPP, including crimes of racism, torture, illicit drug trafficking, terrorism, and heinous crimes. Additionally, bail shall not be granted to those who have previously violated bail conditions, are imprisoned by order of a judge, have reasons for preventive prison, or have prior convictions for criminal offenses. In these situations, the attorney must focus on demonstrating the lack of requirements for preventive prison.
What should the attorney do if the client cannot afford to pay bail?
If the customer cannot afford to pay bail, the lawyer should seek interim release without bail under Article 350 of the CPP, provide evidence of the client’s financial hardship, request a reduced bail amount based on the client’s financial situation, consider filing a habeas corpus petition if necessary, and propose alternative precautionary measures instead of bail to ensure economic status does not unjustly keep someone in prison.
What methods can the attorney employ to proceed following the granting of temporary release?
After being granted interim freedom, the attorney must maintain regular communication with the client to ensure understanding of all imposed conditions; advise the client on the importance of strict compliance with precautionary measures; closely monitor procedural deadlines to prevent freedom revocation due to absence at hearings; stay alert to any changes in the client’s situation that may warrant adjustment of precautionary measures; request, if necessary, the substitution of more severe measures with less stringent ones; oversee the progress of the investigation or court case and intervene as needed; consistently prepare the defense beyond just the issue of freedom; proactively address potential issues and take preventive actions to avoid provisional freedom repeal; diligent monitoring of the process post interim freedom approval is crucial to prevent setbacks and secure the best possible outcome for the client.
What are the primary forms of temporary release outlined in Brazilian laws?
Brazilian law offers three primary forms of temporary release: Provisional Freedom with Bail, Provisional Freedom without Bail, and Provisional Freedom with Precautionary Measures.
