Bail is a preventive measure provided for in Art. 106 of the Criminal Procedure Code of Russia. It is applied to suspects or accused of committing a criminal offense in order to ensure their appearance before the investigator, interrogating officer or in court, as well as to prevent them from committing new crimes or actions that impede the proceedings of the case.
Question and answer What is house arrest and how does it differ from other preventive measures?
Bail in the form of a preventive measure is set by the court. The suspect or accused himself, as well as another person or legal entity, can apply for bail. When setting bail, the court can also impose a number of prohibitions on a person involved in a criminal case: leaving home at a certain time, visiting specific places, communicating with certain people, sending and receiving mail, using a mobile phone and the Internet, driving a car. If the assigned bail has not been posted, the court will choose another preventive measure against the suspect or accused.
Is the deposit refunded?
The suspect or accused person pays bail for themselves, or other people or a legal entity can do it for them. If the bail was paid at the stage of preliminary investigation, it goes to the deposit account of the body in charge of the criminal case, if at the stage of legal proceedings, it goes to the account of the relevant court. When depositing a deposit, a separate protocol is drawn up.
If the suspect or accused has violated the obligation associated with the bail, it is not returned to the bailor. In this case, the pledge turns into state income. In other cases, it is returned: by the court - when rendering a verdict or issuing a ruling or order to terminate a criminal case, by an investigator or investigator - when terminating a criminal case.
Question answer
On what basis can police officers detain?
In accordance with Article 97 of the Criminal Procedure Code of the Russian Federation, the inquirer, investigator, as well as the court, within the powers granted to them, have the right to choose for the accused or suspect one of the preventive measures provided for by the Code, if there are sufficient grounds to believe that the accused or suspect: will hide from the inquiry, preliminary investigation or trial; may continue to engage in criminal activity; may threaten a witness, other participants in criminal proceedings, destroy evidence, or otherwise obstruct the proceedings in a criminal case.
A preventive measure may also be chosen to ensure the execution of a sentence or the possible extradition of a person at the request of a foreign state.
Bail, as a preventive measure, consists of the posting or transfer by the suspect, accused or other individual or legal entity at the stage of preliminary investigation to the body in charge of the criminal case, and at the stage of judicial proceedings - to the court of real estate and movable property in the form money, valuables and shares and bonds admitted to public circulation in the Russian Federation.
According to the meaning of the law, bail is paid in order to ensure the appearance of the suspect or accused before the investigator, interrogating officer or in court, and to prevent him from committing new crimes. This preventive measure can be chosen at any time during the criminal proceedings.
Bail as a preventive measure is applied to a suspect or accused by a court decision.
A suspect, accused or other individual or legal entity also has the right to apply for bail before the court. The petition is submitted to the court at the place of the preliminary investigation and is required for consideration by the court along with the petition of the investigator, interrogating officer to select a different preventive measure against the same suspect or accused, if the latter is received.
The type and amount of bail are determined by the court, taking into account the nature of the crime committed, information about the identity of the suspect or accused and the property status of the bailor. At the same time, in criminal cases of crimes of minor and medium gravity, the amount of bail cannot be less than 50 thousand rubles, and in criminal cases of serious and especially serious crimes - less than 500 thousand rubles.
Property that cannot be foreclosed on in accordance with the Civil Procedure Code of the Russian Federation cannot be accepted as collateral.
The procedure for assessing, maintaining the subject of pledge, managing it and ensuring its safety is determined by Decree of the Government of the Russian Federation dated July 13, 2011 No. 569.
Real estate, shares and bonds, valuables can be accepted as collateral provided that original copies of documents confirming the mortgagor’s ownership of the property being pledged are provided and there are no restrictions (encumbrances) on the rights to such property.
If, in accordance with the legislation of the Russian Federation, a restriction (encumbrance) of rights to property is not subject to state registration or accounting carried out, including by the depository or the holder of the register of securities owners (registrar), the pledgor in writing confirms the accuracy of the information about the absence of restrictions (encumbrances) of rights to such property.
The money that is the subject of the bail is deposited into the deposit account of the court or body in charge of the criminal case. A protocol on the acceptance of bail by the court or body in charge of the criminal case is drawn up, a copy of which is handed over to the bailor.
If bail is paid by a person who is not a suspect or accused, then the essence of the suspicion, the charges in connection with which this measure of restraint is chosen, and the obligations associated with it and the consequences of their violation are explained to him.
In a court ruling or ruling on the use of bail as a preventive measure, the court sets the deadline for posting bail.
If the suspect or accused is detained, then the court, subject to recognition of the detention as legal and justified, extends the period of detention until bail is posted, but not more than 72 hours from the date of the court decision.
If bail is not posted within the prescribed period, the court, upon request, considers the issue of choosing a different preventive measure against the suspect or accused.
If the posting of bail is applied instead of a previously chosen preventive measure, then this preventive measure is valid until the posting of bail.
If the suspect or accused violates the obligations associated with the posted bail, the bail is turned into state revenue by court decision.
In other cases, the court, when rendering a verdict or issuing a ruling or order to terminate a criminal case, decides on the issue of returning the bail to the pledgor. When the investigator or inquiry officer terminates the criminal case, the bail is returned to the pledgor, as indicated in the resolution to terminate the criminal case.
District prosecutor
Counselor of Justice A.E. Konzherovsky
Procedural procedure for election
Bail, as a preventive measure, can be used in criminal proceedings for almost any type of crime. Responsibility for deciding on the possibility of release from custody rests entirely with the court.
The bail procedure cannot be used without a request from the accused. The defendant can submit such a petition independently or through his lawyer.
The pledger can be the accused himself or his legal representative . It is not prohibited for completely strangers and organizations to act in this role, but only with the consent of the person being held accountable. Other people who want to help change the preventive measure of a suspect should remember that if they violate the conditions of release, they will lose money.
There are no clearly established legislative norms regarding the period for depositing money. The court has the right to independently establish a time period during which the suspect’s property can be transferred to the balance of the state. There is only a limitation on the maximum possible period for the execution of this decision, which is 72 hours.
Upon receipt of a positive court decision to grant bail, it is necessary to transfer money to the court deposit as soon as possible. Even a minor delay may serve as grounds for revoking the right to be free during investigative measures.
The likelihood of approval of a petition to change the preventive measure will increase significantly if:
- The suspect has minor children as his dependents.
- There are sick or elderly relatives under his care.
- Pregnancy and health problems.
- Upon surrender.
Often the court makes a decision to grant bail if the crime was committed under conditions of psychological or physical influence on the accused by other persons, as well as due to a combination of life circumstances.
Attention! If the suspect refuses to cooperate with the investigation, and also provides knowingly false information about the fact of the crime committed, then such actions may be recognized by the court as aggravating. As a rule, in such a situation the court will refuse to grant bail.
The importance of bail as a preventive measure
In recent years, there has been a trend in Russia of a shortage of places to hold convicted people. New premises are not being built, and the number of crimes is not decreasing. In this regard, the courts practice the appointment of other measures that are not related to being in pre-trial detention centers and prisons. This includes house arrest, recognizance not to leave, and bail. For ordinary citizens, bail is not a priority measure, since the amounts assigned by the court are often prohibitive, and not everyone has the opportunity to mortgage real estate. Thus, bail is used mainly in relation to wealthy members of society.
In criminal proceedings, bail is used as a measure of restriction of rights, guaranteeing that the suspect or accused will come, if necessary, to the employees of the body investigating the crime or to court. Many experts recognize bail as the most stringent measure after restriction of freedom, since a person risks material wealth, and the amount of bail is, as a rule, quite significant.
For the Russian system, bail as a preventive measure is also confirmation of compliance with international law. One of the acts provides for a person’s right to a preventive measure that does not involve isolating him from society, but guarantees that he will be present at the hearing of the case in court.
Bail as a preventive measure against a suspect can be assigned for 10 or 45 days, depending on the qualifications of the crime. If during this time the suspect changes his status to accused, the preventive measure continues to be in effect until a decision is made on the case. If charges are not brought, and the period for which the rights and freedoms of the suspect may be limited expires, then the bail is returned to the pledgee.
What it is
Bail in a criminal trial is a measure of psychological influence on a person under investigation .
By bringing in certain valuables, the citizen undertakes to appear in court and not to exert any influence on witnesses or otherwise interfere with the conduct of investigative measures. Reference! Bail is chosen by the court as a guarantee of the appearance of a suspect in a criminal offense at the first request of the investigator. The undoubted advantage of such a preventive measure is the opportunity for citizens under investigation to carry out their daily duties.
What does the Code of Criminal Procedure say?
All measures of coercive influence on a person must be prescribed in the relevant regulatory documents. Information about the concept of bail and the rules for its application can be obtained by reading Article 106 of the Code of Criminal Procedure of the Russian Federation.
This document describes in detail the possibility of using this measure of influence on a suspect , and also indicates the possibility of using certain material assets as collateral.
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Can a cash contribution be considered as a preventive measure?
Bail is an alternative to pre-trial detention of a person, and therefore can be fully considered a preventive measure. The fear of losing property is an excellent incentive to adhere to the rules established by the court or investigator.
Lawyers say the opposite: if a person decides to hide from the investigative authorities, then he will definitely do so, regardless of the amount of money transferred. It will take much more effort to catch such a fugitive, so even receiving a significant amount from the state will not be able to cover all the additional expenses that will inevitably arise in this case.
Petition to change the preventive measure
If the investigator does not respond to the request of the accused, a complaint about the investigator’s inaction on the issue raised is possible.
A complaint in a criminal case can restore the right to defense. Changing the preventive measure of detention is possible only after a criminal case has been initiated. It is permissible to use these actions both during trial and pre-trial proceedings. Most often, defendants and their defense attorneys request:
- changing the preventive measure to house arrest for different conditions of leaving the residential premises (for example, due to the need to provide medical assistance to the accused);
- changing the preventive measure for health reasons, which may worsen immediately after detention;
- a petition to change the preventive measure of bail, the amount of which should properly be significant (for example, in our legal practice, we sought a cash bail of 1,000,000 rubles instead of keeping the principal in a pre-trial detention center).
- asking for a change in the preventive measure to a written undertaking not to leave the place and proper behavior is of course not prohibited by law, but within the framework of the defense of the suspect (accused) the chances of its election are much less compared to those described above.
The petition is submitted to the investigator or directly at the trial, where the issue of choosing a preventive measure is decided.
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Do not confuse changing the preventive measure with the concept of deferment of criminal punishment, which is possible at the stage of execution of the sentence, while the opposite measure is valid only until this moment.
The procedure for changing the preventive measure
If it is necessary to change the preventive measure to a more lenient one, only the judicial authorities have the right to take action to cancel the previous decision. However, in no case should they exceed their authority.
The chosen procedure is monitored during its implementation by the relevant authorities. During the preliminary investigation, representatives of the law conducting the investigation (inquirers, prosecutors, investigators) have the right to independently prescribe preventive measures if the powers granted to them allow this. The exception is house arrest and detention, the imposition of which requires a court decision.
Grounds for changing the preventive measure
The legislator has provided for the possibility of mitigating the preventive measure if there are certain grounds.
This is possible if:
- the grounds for her election changed. For example, if there are grounds to believe that a person will escape or interfere with the investigation, a measure in the form of detention was chosen. But then these grounds disappeared and it is clear that the suspect will not do this;
- a serious illness has been discovered in which the citizen cannot be in custody. The list of diseases is provided for by Government Decree No. 3. The disease must be confirmed by a medical examination.
- When changing the preventive measure, a judge or other body takes into account the act committed, the identity of the suspect, his health, age, where he works, whether he is married or not, and the presence of children.
The procedure for changing the preventive measure
The judge, investigator or inquiry officer has the right to change the measure. For this:
- suspects submit a written petition to the body that chose the preventive measure.
- if the preventive measure was appointed by the investigator with the consent of the head of the investigative body or the prosecutor's office in the pre-trial process, then it can only be changed with their consent.
- If the basis is illness, then to mitigate the measure, the suspect undergoes a medical examination. To do this, he sends a statement about the presence of illness to the body that has the case or to the head of the place of detention. They decide whether to conduct an inspection or not. The results are recorded in the conclusion. If the disease is confirmed, the conclusion along with the petition must be sent to the body that made the decision. Within three days after its receipt, a decision is made, a copy of which is given to the citizen.
