IRINA KUZINA, ATTORNEY AT BARRISTERS, LLC, ON "THE RELEASE OF HOSTAGES," EXCLUSIVELY FOR "LEGAL PRACTICE"

"RELEASE OF HOSTAGES"

Although the setting of bail is not subject to appeal, there is already a practice in which appellate courts open proceedings and actually consider such
appeals.

The phrase “pure bail” (i.e., bail as a preventive measure in criminal proceedings) is appearing more and more frequently in the rulings of investigating judges. Rumor has it that this is no coincidence—there are even performance targets. Be that as it may, Article 182 of the Criminal Procedure Code (CPC) of Ukraine is gaining popularity, and consequently, practice is revealing gaps in the legislation and differing interpretations of legal provisions. Let’s examine some interesting cases.

An “Unreasonable” Amount

Despite the limits on bail amounts established in paragraph 1 of part 5 of Article 182 of the CPC of Ukraine based on the severity of the crime, investigating judges are increasingly resorting to paragraph 2 of part 5 of Article 182 of the CPC of Ukraine. This provision (allowing bail to be set above the prescribed limits) may be applied in exceptional cases; however, investigating judges likely consider too many cases in which bail is set for suspects to be exceptional.

Formally and without providing sufficient justification, judges state that such a high bail amount “will ensure that the suspect fulfills his or her procedural obligations” (but wouldn’t a lower amount do the same?).

At the same time, Part 4 of Article 182 of the Code of Criminal Procedure of Ukraine stipulates that the amount of bail must sufficiently guarantee that the suspect or defendant will fulfill the obligations imposed on them and must not be knowingly excessive for them. In other words, the part of this provision prohibiting investigating judges from setting excessive bail is largely ignored.

The case law of the European Court of Human Rights (for example, “Georges Bonnechaux v. Switzerland,” No. 8224/78, § 74) shows that the setting of the bail amount depends on the suspect’s assets. Instead of the boilerplate phrase “the amount of bail will ensure that the suspect fulfills their procedural obligations,” the investigating judge must describe the suspect’s assets in detail and determine an amount that would be affordable for the suspect but sufficiently substantial.

Incidentally, the defense should carefully review the reports from the National Agency of Ukraine for the Identification, Tracing, and Management of Assets Derived from Corruption and Other Crimes, which are submitted by the prosecutor. The list of assets provided by the Agency may not correspond to the information reports attached from the registries (as recently happened with a suspect for whom the prosecutor requested bail in an amount equivalent to $25 million).

Lack of Funds

A suspect for whom an exorbitant bail has been set will likely ask their attorney: “Maybe it’s worth posting a partial bail?” For comparison, I will cite two cases from my recent practice: in the first case, the suspect found sureties who, within five days, paid approximately 1,200,000 UAH in several installments out of the 5,200,000 UAH required; in the second, bail in an amount equivalent to $1 million was not posted at all, since the suspect believed he would not be able to raise the full amount anyway.

In the first case, they managed to buy time; 38 days passed between the imposition of the pretrial measure in the form of bail and the change in the pretrial measure. In the second case, taking into account the postponement of the hearing on the motion to change the pretrial measure (due to an appeal, which we will return to later), 34 days passed from the time the pretrial measure in the form of bail was imposed until it was changed.

However, in the first case, the pretrial measure was changed anyway, and problems arose with the return of the partially paid bail. The prosecutor filed a motion with the investigating judge to forfeit the bail to the state, arguing that “the suspect violated the court-imposed obligation to post bail.” Of course, the prosecutor’s motion was denied, but the return of the bail took some time. Draw your own conclusions.

Appeal Against Bail

As provided for in Article 309 of the Code of Criminal Procedure of Ukraine, an investigating judge’s ruling setting bail is not subject to appeal. Only the prosecutor may file an appeal regarding the refusal to impose pretrial detention as a preventive measure (if this issue was raised in the motion for a preventive measure).

However, there is already a practice in which defense attorneys file appeals citing paragraph 8 of Part 2 of Article 129 of the Constitution of Ukraine, and appellate courts open proceedings and consider such appeals on their merits. And this is correct, since this approach is consistent with the position of the Constitutional Court of Ukraine, as set forth in Decision No. 12-rp/2010 and several subsequent decisions. And while cases of bail being revoked are practically nonexistent in the Kyiv region (at least to my knowledge), reducing the amount of bail in the appellate court is a very real possibility.

And you should definitely file an appeal to prevent the investigating judge from rushing to issue a ruling changing the preventive measure before the appeal proceedings on the initial bail ruling are concluded—after all, why rush?

The bail hasn’t been posted—what happens next?

And then there’s the common phrase: “Failure to post bail is grounds for changing the preventive measure to a more severe one.” You’ve heard it often, haven’t you? But this statement is false: nowhere in the Criminal Procedure Code of Ukraine is there a requirement to change the preventive measure to a more severe one in such a case. On the contrary, time has passed; the suspect has effectively been subject to a preventive measure in the form of a personal undertaking and has fulfilled all obligations under Part 5 of Article 194 of the Code of Criminal Procedure of Ukraine—thereby proving his good faith. The defense may request a reduction in the preventive measure.

Moreover, there are no grounds for automatically changing the preventive measure to pretrial detention (which prosecutors often request); house arrest is the most likely measure, all other things being equal. “Nighttime” house arrest, applied in proceedings involving particularly serious crimes, is a very favorable outcome for the defense, as it does not entail financial costs for the suspect and provides a degree of freedom that allows him to go about his daily business and earn a living.

Refusal to Grant Bail

Even when charged with an especially serious crime (for example, under Part 5 of Article 191 of the Criminal Code of Ukraine—embezzlement on an especially large scale), it is possible to prove the absence of reasonable suspicion, which results in the refusal to impose a preventive measure. Thus, on August 15 of this year, the Desnianskyi District Court of Kyiv, in its ruling No. 754/10777/18, refused to impose a preventive measure entirely on the grounds that the suspicion was unfounded, and also pointed out numerous technical errors in the investigator’s motion.

Incidentally, the prosecutor soon resubmitted a virtually identical motion for a pretrial measure, in which he cited the same unfounded suspicion. The investigating judge of the Desnianskyi District Court of Kyiv, in a ruling dated August 23, 2018, No. 754/11170/18, again denied the prosecutor’s request.