“Pure” bails: unhacked practice
Attorney at Law “Barristers”
“Pure” bail, that is a bail as a measure of restraint in criminal proceedings occur more and often in determinations of investigative judges. There are rumours that this is no accident, but it is made before the elections. And there are even some plan indices set for prosecutors – procedure managers to collect certain amounts of bails each month. Be that as it may, but Article 182 of the Criminal Procedural Code of Ukraine (hereinafter – the Criminal Procedural Code) is gaining in popularity, and hence practices reveals gaps in legislation and inconsistencies of legislative norms. Let us consider some interesting cases.
Despite the fact that Paragraph 1 of Part 5 of Article 182 of the Criminal Procedure Code of Ukraine provides limits for bails in size depending on the gravity of the crime, investigative judges use Paragraph 2 of Part 5 of Article 182 of the Criminal Procedural Code of Ukraine. Although this norm (the base of establishing the bail above prescribed limits) can be used in exceptional cases, however, the investigative judges consider too many proceedings as exceptional for which the suspect is set a bail.
Formally and without unnecessary groundings they conclude that such a high amount of bail “can ensure that the suspect fulfil his procedural obligations” (and isn’t a lower amount not able to do this?).
At this, Part 4 of Article 182 of the Criminal Procedural Code of Ukraine stipulates that the amount of bail must be a sufficient measure to ensure the fulfillment of the responsibilities by the suspect or accused and can not be obviously unaffordable for him.
That means that the second part of this norm – the prohibition to set unaffordable bail – is mostly ignored by investigative judges.
ECtHR Practice («Bonnechaux v. Switzerland», No. 8224/78, §74 et al.) shows that establishment of the amount f the bail depends on the assets of the suspect.
Instead of template phrase “the amount of the bail will ensure the fulfillment of the responsibilities by the suspect” investigative judge would have to describe in detail the suspect’s property, to determine the amount that would have been affordable for him, but quite weighty.
By the way, the defence should pay attention to the ARMA certificates filed by the prosecutor. The property list set by the agency may not correspond to the attached information references from the registers (as happened recently with one suspect, for whom the Prosecutor asked to set a bail in the amount equivalent to US $ 25 million).
No money – what to do?
The suspect, for whom an unaffordable bail is set, can ask his lawyer a question: it is worth to pay the bail in part?
In my recent practice I had two cases for comparison: in the first case, the suspect found the depositors, who in several payments within five-day period contributed about 1.2 million UAH of required 5.2 million UAH. In the second case a bail in the amount of the equivalent of $ 1 million USD was not made at all, because the suspect thought that he would not collect the necessary amount anyway.
In the first case we managed to gain time; 38 days passed since the establishment of a measure of restraint in the form of a bail till the change of the measure of restraint.
In the second case, taking into account adjourning of the hearing of the application concerning changing the measure of restraint (in connection with the appellate review, to which we shall return) 34 days passed since the establishment of the measure of restraint in the form of a bail till the change of the measure of restraint.
At this in the first case the measure of restraint was still changed, but there were some difficulties with the return of part of the bail. The prosecutor filed a request to the investigative judge to seizure the amount of the bail to the state income as “the suspect had violated the obligation set by the court to pay a bail” Of course, the public prosecutor got a refusal (determination of Pridneprovskyi district court of Cherkasy No.711/1020/18 dated 22.03.2018), but the return of the bail took time.
Make your own conclusions.
Is it possible to appeal against the ruling on the establishment of a bail?
According to the content of Article 309 of the Criminal Procedural Code of Ukraine, the determination of the investigative judge on the establishment of the bail is not subject to appellate review. Only the prosecutor can file an appeal in terms of denial of measure of restraint in the form of detention (if that question was raised in the application concerning applying a measure of restraint).
However, there is a practice, when the defendants file appeals, referring to paragraph 8 of Part 2 of Article 129 of the Constitution of Ukraine and courts of appeal initiate proceedings and review the merits of the case. And this is correct, because it is consistent with the logic of the Constitutional Court of Ukraine, set in decision No. 12-rp/2010 and several subsequent ones. And if in the Kiev region I do not know about cases of cancellation of bails, it is real to reduce the amount of the bail in the Court of Appeal.
And certainly it is advisable to file an appeal petition, to make the investigative judge not to rush to make a determination to change the measure of restraint before the end of appellate review of the initial determination of the bail, because who needs the rush?
Thus, the bail is not paid, then what?
And there follows a common phrase “failure to make a bail a basis for changing the measure of restraint for a stricter one,” – you often heard it, did not you?
But the statement is false: in the Criminal Procedure Code of Ukraine there is no requirement to change the measure of restraint for a stricter one in such case. On the contrary, the time passed, the suspect was actually under the measure of restraint in the form of personal commitment, he fulfilled all obligations under Part 5 of Article 194 of the Criminal Procedural Code of Ukraine – thus he has proved the reliability. The defence may require softening the measure of restraint.
And there is surely no reason to change automatically the measure of restraint for detention (as often prosecutors ask to do); home arrest is the most likely result, ceteris paribus. “Night” home arrest for very serious crimes is a very good result for the defence, because the suspect does not entail financial costs and gets the measure of freedom that allows to engage in business as usual and earn a living (see for example determination of Pecherskiy district court of Kyiv dated 09.24.2018, the No.757/43270/18-k, determination of Pridneprovsk district Court of Kyiv dated 26.01.2018 No.711/11663/17).
And could the court completely refuse a bail as a measure of restraint?
Even for particularly serious crimes (in our case – part 5 of article 191 of the Criminal Code – embezzlement of funds in especially large sizes) – it is possible to prove the absence of a reasonable suspicion that involves the denial of establishment of a measure of restraint. So on August 15, 2018 Desnyanskiy District Court of Kyiv in determination No.754 / 10777/18 refused to establish a measure of restraint basing on unfounded suspicions, and drew attention to the numerous technical mistakes in the investigator’s application.
Interestingly, the prosecutor did not draw the right conclusions, and soon re-negotiate virtually identical application on establishment of the measure of restraint, which referred to the same unwarranted suspicion. Predictably, the investigative judge of Desnyanskiy District Court of Kyiv by determination dated August 23, 2018 No.754/11170/18 refused the prosecutor again.
“Scale down this cliff! Let not the heat, nor the cold
Dare stop us! Withstand the difficulty, and the thirst, and hunger.
For it is designated for you to break down this cliff”
Ivan Franko, “Kamenyarі”