The Myth of "Indefinite" Detention as a Precautionary Measure

“What happens if I post bail?”—this is the question most clients ask before choosing a pretrial measure. There may be several answers, but one of them is that the return of the funds after the expiration of the obligations secured by the bond may turn into a separate process, and here’s why.

All pretrial measures prescribed by law are imposed for a term specified in the court order, but not exceeding 60 days. In other words, the pretrial measure remains in effect as long as the court order is in effect and the term specified therein remains in force. Upon the expiration of the ruling, the precautionary measure also ceases to be in effect unless it has been extended by another ruling. This legal framework is logical, understandable, and consistent with legislation and legal practice.

Hence, the following legal framework follows logically: a bond ensures the fulfillment of the obligations imposed on an individual, and these two legal categories are inextricably linked; the termination of these obligations leads to the expiration of the period during which the bond remains in the budget account.

But why, then, is a deposited security—which seems to be intended to remain in the budget account—an exception to the rule, if the obligations assigned to the individual and secured by the security have expired?

If we remove the duties from this framework, the bond effectively secures nothing, and its continued presence in the accounts of the State Treasury of Ukraine amounts to nothing more than an interest-free deposit by an individual in the state budget of Ukraine.

This likely gives rise to the practice of courts imposing excessive bonds amounting to tens of millions, since these are funds freely available in the Ukrainian budget for an extended period—try getting them back (but that’s another topic).

The problem with this issue stems from the fact that the period during which the posted bail remains in the relevant budget accounts after the expiration of the obligations is not regulated by current legislation. Consequently, this gives rise to a rather illogical judicial practice, under which the bail paid is treated as if it were indefinite and continues to “remain in the budget” even after the obligations imposed on the individual pursuant to the court order have expired.

Consequently, pretrial investigation authorities subsequently use this practice as a means of manipulation or even as a means of psychological pressure on suspects or defendants.

I propose considering the following legal provisions of the current law:

- Article 203 of the Criminal Procedure Code of Ukraine stipulates that a ruling on the application of a preventive measure ceases to be in effect upon the expiration of the term of the ruling on the imposition of the preventive measure, the rendering of an acquittal, or the dismissal of the criminal proceedings.

- Part 11 of Article 182 of the Code of Criminal Procedure of Ukraine: a bond that has not been forfeited to the state shall be returned to the suspect, the accused, or the surety upon the termination of this preventive measure.

- Article 196(2) of the Criminal Procedure Code of Ukraine: A ruling on the application of a preventive measure not involving detention shall specify the specific obligations as provided for in Part 5 of Article 194 of the Criminal Procedure Code of Ukraine, that are imposed on the suspect or defendant, and, in cases established by this Code, the duration for which they are imposed.

- Part 1 of Article 197 of the Code of Criminal Procedure of Ukraine stipulates that the term of validity of a ruling by an investigating judge or a court on pretrial detention may not exceed sixty days.

The “root of the problem” lies solely in paragraph 6 of Article 195 of the Code of Criminal Procedure of Ukraine, which states the following: The obligations provided for in this article may be imposed for a period not exceeding two months… Upon expiration of the period—including any extension—during which the suspect or defendant was subject to the relevant obligations, the ruling on the application of the preventive measure in this regard ceases to be in effect, and the obligations are revoked.

Certain judicial practice, as it may be called, based solely on the phrase “in this respect,” has given rise to an erroneous legal construct under which bail, after the expiration of the period during which the obligations were imposed, continues to ensure the general obligation to comply with the requirements of the investigator or prosecutor.

However, if we break down paragraph 6 of Article 195 of the Code of Criminal Procedure of Ukraine into separate legal categories, everything becomes clear, and it is quite easy to conclude that, upon the expiration of the term of the imposed obligations, the bail must indeed be returned to the bailor and is not indefinite, namely:

• The bond secures only the “imposed” relevant obligations; this is provided for by the article itself. Obligations are imposed only by a court order.

• The legal nature of the general obligation to comply with the investigator’s or prosecutor’s demands—which, according to erroneous judicial practice, is supposedly continued to be secured by the bond— after the expiration of the obligations imposed by the ruling, does not consist in “imposing” this obligation on the individual. The legal nature of the general obligation to comply with the requirements lies in the “arising” of the obligation in connection with a person’s acquisition of a certain status.

This raises a number of further questions:

- Can the effect of a ruling or law extend to the surety after the expiration of the obligations?

- Is the pledgor obligated to continue holding their funds in state budget deposit accounts to ensure that a suspect or defendant fulfills a general obligation that is not imposed by a court order?

I hope that after reading this article, every judge who has ever issued a so-called “indefinite bail” ruling will nevertheless take into account that we are dealing with a perfectly logical legal framework, and that assertions regarding the indefinite nature of bail, on the contrary, contradict all logic and the letter of the law.