Quando o perigo se presume: o grau de prova do fumus boni iuris e do fumus commissi delicti na tutela provisória, na indisponibilidade de improbidade e nas medidas assecuratórias da Lei 15.358/2026

the standard of proof for fumus boni iuris and fumus commissi delicti in provisional relief, in the freezing of assets in administrative improbity actions and in the protective measures of Law 15.358/2026

Abstract

In 2026, the three main Brazilian regimes of provisional asset restraint came to accept that the danger of delay need not be shown. The Code of Civil Procedure had already done so in relief based on evident right; the Federal Supreme Court, in ADI 7.156, reinstated the presumption of urgency for the freezing of assets in administrative improbity actions; and Law 15.358/2026 authorized criminal protective measures based on sufficient evidence that the crime was committed, without mentioning danger and with adversarial proceedings deferred as the rule. The article asks what standard of proof fumus boni iuris, or fumus commissi delicti in criminal procedure, must meet when danger is no longer shown and whether that standard can be the same across the three regimes. Through a comparative study that takes civil procedure as the benchmark and criminal procedure as the end point, and through deduction from the theory of standards of proof and the constitutional guarantees of due process, it argues that dispensing with or presuming danger shifts judicial control to that requirement. It proposes a common criterion under which restraint without proven danger requires the applicant's hypothesis to reach high probability or to clearly outweigh the account of the affected party, in proportion to the intensity of the measure, with reasons setting out the evidence. It concludes that, without a prior hearing, only high probability can support the measure, and that article 9 of Law 15.358/2026 must be read as setting sufficient evidence as a floor, not a ceiling.