We often read news about bails for the suspects in grand corruption set by the High Anti-Corruption Court. Sometimes, they reach hundreds of millions, sometimes hundreds of thousands in the national currency.
For instance, well-known construction developer Mykytas was granted bail of UAH 100 million for scheming with housing for the National Guard (“custody with option of release on bail”).
A possible intermediary in transfer of a USD 5 million bribe for the NABU and SAPO management was appointed 60-day custody with the bail set at UAH 84 million.
At first glance, it may seem that some decisions are illogical. However, there are a number of guidelines (legal norms) that investigative judges and judges use to make such decisions.
Let’s figure it out.
What is bail?
Bail can be an independent type of interim measure (with additional obligations imposed) or an alternative to arrest (custody). It all depends on the severity of the crime and the risks of the suspect/accused being at large.
Who can post bail?
The defendant or another private individual or even a legal entity transfer the specified amount to a special account.
Who can be appointed bail?
Bail is a type of pre-trial interim restriction, which means that it can be set after the individual has been served with charges.
Who decides on the bail?
At the stage of the pre-trial investigation, when the person has been served with charges but not accused yet, it is the investigative judge who selects the interim measure. When the prosecutors send the case to the court, it is the panel of judges that decides. We say panel because the law labels all crimes under the jurisdiction of the NABU and the SAPO severe; therefore, they must be tried by at least three judges.
How often does the court reconsider bail?
Any interim measure is reconsidered every 60 days. The prosecutor can file a motion to uphold the measure or to change the bail. However, such a motion must be well-substantiated, for instance, if the person in question fails to meet their procedural obligations.
What affects the bail amount?
The circumstances of the alleged crime, the financial and family status of the suspect / accused, the risks. The risks may include the following: hiding, destroying or distorting evidence; influencing witnesses, victims, experts and co-defendants. There is also a risk that the person will continue their criminal activity.
Here, we should also mention the right to freedom. Detention is an exceptional and strict interim measure. It aims at isolating the individual from the society. The court must take this into consideration and, when possible, propose an alternative to custody in the form of bail.
The judge must set bail at an amount which would discipline the individual and motivate them to fulfill their obligations defined by the court.
What happens if bail is not put up?
The involved person will go through another court hearing where a different, stricter interim measure will be selected.
When is bail returned?
When the period of the interim measure ends, bail is returned to the suspect / accused / payer. If the accused put up bail on their own, the court may use bail as part of sentence execution (confiscation). If bail has been put up by third party, the money can be used for sentence execution only with the payer’s consent.
Why is bail not returned sometimes?
Bail is a guarantee that the suspect / accused will perform the duties assigned to them. If the person fails to do so, the funds are transferred to budget revenue. This decision is made by the court. In our case, the High Anti-Corruption Court. The same thing happened in the same story with Mykytas.