Fiança Policial e ANPP: Uma Leitura Constitucional do Art. 322 do CPP Diante do Concurso de Crimes

This study analyzes the need for a systematic and functional interpretation of Article 322 of the Brazilian Code of Criminal Procedure in light of the introduction of the Non-Prosecution Agreement (Acordo de Não Persecução Penal – ANPP) under Article 28-A of the same statute. The research stems from a paradox observed in practice: individuals under investigation who meet all the objective requirements for an ANPP — such as being first-time offenders, having committed non-violent offenses, and facing a minimum penalty of less than four years — remain in custody due to the traditional interpretation that prevents police authorities from granting bail when, in cases of multiple offenses, the sum of maximum penalties exceeds four years. The article argues that this restriction lacks explicit legal backing and is a judicial construction that conflicts with the principles of proportionality, reasonableness, and especially homogeneity. Therefore, it proposes a reinterpretation of Article 322 of the Code that allows police officers to analyze each offense individually and, using a prudential criterion, consider the sum of minimum penalties as a parameter consistent with the logic of the ANPP. Without requiring legislative reform, the proposal aims to correct practical distortions, strengthen the constitutional role of police authorities as guarantors of fundamental rights, and promote a more rational, proportional, and efficient criminal justice system from the very outset of the arrest in flagrante delicto.