In recent years, the belief has taken root in society that the level of public attention a case receives is directly proportional to the amount of bail. But is there some mathematical formula in which a person’s ability to pay exorbitant sums is the sole factor determining their chance of avoiding jail?
Bail and Its Amount Under the Rules of the Code of Criminal Procedure
Indeed, if the defendant is a public figure or the case has significant public resonance, one can expect a bail amount in the “tens of millions.” Unfortunately, the public views such enormous bail amounts positively, as if they were a punishment already carried out, rather than a preventive measure during the pretrial investigation phase, in
lengthy and complex proceedings.
However, according to the provisions of the Code of Criminal Procedure, bail is one type of preventive measure, the purpose of which is to ensure that the suspect or defendant fulfills their procedural obligations and to prevent attempts to obstruct the pretrial investigation.
According to Part 4 of Article 182 of the Code of Criminal Procedure: “The amount of bail shall be determined by the investigating judge or the court, taking into account the circumstances of the criminal offense, the financial and family circumstances of the suspect or accused, other information regarding their person, and the risks provided for in Article 177 of this Code. The amount of bail must sufficiently guarantee that the suspect or accused will fulfill the obligations imposed upon them and may not be knowingly excessive for them.”
In other words, the imposition of a pretrial measure in the form of bail is by no means a means of punishing a person (suspect or defendant), but merely a guarantee to ensure compliance with the obligations imposed on that person by the court.
A prerequisite for the court’s imposition of any pretrial measure (including bail) is a motion by the prosecution to apply such a measure.
Quite often, the investigating authorities justify the amount of bail based on the amount of unlawful gain received, the amount of damages caused, or the value of the person’s property. However, to what extent is this approach legitimate?
It is worth noting that preventive measures, including bail, are mostly applied during the pretrial investigation. However, at this stage, the person’s guilt in committing a criminal offense has not been proven.
The fact that a criminal offense has been committed can only be confirmed by a court conviction. This conclusion clearly and unequivocally follows from the provisions of Article 17 of the Code of Criminal Procedure and Article 62 of the Constitution.
At the same time, pretrial investigation authorities typically file a motion with the court to seize the suspect’s or defendant’s property concurrently with a motion to impose a preventive measure.
Consequently, such a person cannot even theoretically pay any amount of bail, since their property and funds have been seized.
Such situations effectively make detention the only option due to the person’s inability to post bail, and bail amounts in the millions do not appear to be a preventive measure but are, in fact, a form of punishment against the person.
“Exceptional Cases” for Setting Bail
Courts generally set bail as an alternative to pretrial detention, and the amount of such bail exceeds the limits specified in criminal law.
Thus, pursuant to paragraph 3 of part 5 of Article 182 of the Code of Criminal Procedure, in exceptional cases, if an investigating judge or a court determines that bail within the specified limits is insufficient to ensure that a suspect is charged with committing a serious or particularly serious crime, to fulfill the obligations imposed upon them, bail may be set at an amount exceeding 80 or 300 times the subsistence minimum for able-bodied persons, respectively.”
At the same time, the Code of Criminal Procedure does not provide a definition of the term “exceptional cases,” which allows both law enforcement agencies and investigating judges to make decisions that are in no way substantiated and are based solely on their own perceptions.
Unfortunately, this interpretation is generally applied by them to the detriment of suspects or defendants…
ECHR Case Law
The European Court of Human Rights has repeatedly addressed the issue of bail amounts in its decisions.
In particular, in its judgment in the case of “Hristova v. Bulgaria,” the ECHR noted: “National courts must provide sufficient reasoning to justify the amount of bail set. Thus, the seriousness of the charge not only cannot be the sole factor justifying the amount of bail, but it also cannot be the decisive factor. Similarly, the risk of absconding cannot be assessed solely on the basis of considerations relating to the severity of the penalty that is likely to be imposed.”
Also worthy of note is the ECHR’s decision in the case of “Istomina v. Ukraine,” in which the Court noted: “By focusing on the amount of damage allegedly caused by the applicant, without conducting a thorough assessment of all relevant factors, including her ability to pay the specified amount of bail, and failing to provide a satisfactory explanation as to why the bail was set at such an exceptionally high amount, the domestic courts failed to comply withto provide adequate and sufficient reasoning for their decisions on the amount of bail, as required by Article 5, paragraph 3, of the Convention for the Protection of Human Rights and Fundamental Freedoms. Consequently, this provision was violated.”
Separately, attention should be drawn to the decision in the case of “Manguras v. Spain,” in which the ECHR agreed that the national courts had reasonably taken into account the risk that the applicant, as a foreign national, the captain of a foreign vessel and present only periodically in the territory of the State in whose waters the crime (an environmental disaster resulting from an oil spill) was committed, might evade punishment.
Thus, taking into account the specific nature of the case, the ECHR acknowledged that the national courts may indeed have lacked confidence that the amount of bail, determined solely on the basis of proportionality to the applicant’s financial circumstances, would be sufficient to ensure his presence during the trial.
Furthermore, in the aforementioned case, the ECHR noted that the applicant was released after providing a bank guarantee (rather than paying the full amount of the bail).
In other words, these ECHR decisions set out a clear list of criteria and requirements that national courts must follow when determining the amount of bail and must set such an amount so that the suspect or defendant is able to pay it.
The Reality in Ukrainian Courts
Article 17 of the Law “On the Enforcement of Decisions and the Application of the Case Law of the European Court of Human Rights” requires courts to apply the Convention for the Protection of Human Rights and Fundamental Freedoms and the case law of the ECHR as sources of law when adjudicating cases.
Currently, when selecting a pretrial measure for a suspect—whether in the form of pretrial detention (with the possibility of bail) or bail—national courts are required to apply the case law of the European Court of Human Rights on this matter.
Whether Ukraine’s national courts comply with these requirements is not even a rhetorical question.
In practice, investigating judges merely note the need to set bail at a higher amount, describing such a “need” with formal (often abstract) explanations, without in any way substantiating the “exceptional nature” of the specific case.
In 99% of cases, such “justifications” consist of a mechanical and unmotivated regurgitation of provisions from the Code of Criminal Procedure, as well as standard phrases such as “taking into account the person’s financial situation.”
One striking example of such an “arbitrarily determined” bail amount is the case of the former Chief Justice of the Supreme Court, who was ordered to pay bail in the amount of 107 million hryvnias—an amount he was unable to pay.
Over time, the bail amount changed periodically, and only when it was reduced to 18 million UAH was it paid, and the individual released from pretrial detention.
Thus, although the factual circumstances of the case remained unchanged, the bail amount “fluctuated” from 107 million UAH to 18 million UAH, which once again confirms the lack of justification and arbitrariness in setting the bail amount.
As the author has noted on numerous occasions, the European Court of Human Rights (ECHR) has established the possibility of providing a bank guarantee (rather than paying the full amount of bail) as a means of ensuring that the suspect fulfills their procedural obligations.
However, at present, neither current Ukrainian legislation nor judicial practice considers this option…
Author: Barrister Vadim Kolokolnikov
Source: https://zib.com.ua/ua/166678-yak_obruntovuvati_proporciynist_zastavi_instrukciya_dlya_zah.html