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04.01.2022

How collateral should be determined when choosing a preventive measure

In the conditions of a market economy, bail is one of the most effective measures applied to a person who is brought to criminal liability. This efficiency is achieved due, first of all, to the economic component of the preventive measure itself. The right of ownership and preservation of funds of the mortgagor, of course, acts as a significant safeguard against violations of the criminal procedural law by suspects and accused persons. This conclusion is confirmed by law enforcement and judicial practice.

The leading positions in record bails are currently held by the Higher Anti-Corruption Court and the Pechersk District Court of the city of Kyiv. Note that on its own website, the High Anti-Corruption Court reported that during the 2 years of the court’s existence, the total amount of funds received as collateral was almost equal to one

billion hryvnias , and 65 million hryvnias have already been transferred to the state’s income. Among the most high-profile cases and large amounts of bail, which were applied by the High Anti-Corruption Court, it is worth mentioning the following:

• 100 mln. UAH. – in the case of embezzlement of JSC “Ukrzaliznytsia” funds, in which the People’s Deputy was released from pre-trial detention center under the specified bond, which was later reduced by the appeals court by 10 million;

• 70 mln. UAH. – in the case of fraud with customs clearance of goods, where the prosecution claimed damage to the state in the amount of UAH 77 million. It is worth noting that in this case the total amount of bails even exceeded the amount of damages to the state. Thus, only the person who, according to the pre-trial investigation, is the organizer of the scheme, the Odesa businessman, was given bail in the form of 70 million hryvnias, 35 of which were later charged to state revenue. The sums for the other 10 defendants ranged from 18 million hryvnias to 190,000 hryvnias;

80 million UAH – in the case of the former head of the Ukrbud company, of which UAH 30 million was later was charged to state income due to the suspect’s violation of his own duties. When choosing a new preventive measure for the suspect, there was already a bail of 100 million hryvnias, which was never paid, so the developer was in a pre-trial detention center. It is natural that it was during his stay in the places of pre-trial detention that the person involved cooperated with NABU detectives and SAP prosecutors;

• 244 mln. UAH – for 3 participants in the case of providing a record bribe in the amount of 6 million dollars to the leadership of NABU and SAP. It is interesting that the total amount of pledges is almost two times greater than the amount of the alleged unlawful benefit itself;

• 30 mln. UAH – in the case of the former mayor of Odesa, although the prosecutor demanded 130 million liens on it

It is interesting that the prosecution’s “appetites” are no less. Yes, everyone remembers the year 2014, when the prosecution demanded bail in the amount of UAH 1.5 billion for the ex-chairman of Naftogaz of Ukraine, and in the case of the opposition MP and head of the political trade party “Opposition Platform – For” life”, the Office of the Prosecutor General demanded bail in the amount of UAH 1 billion. In this context, it is clearly impossible to evaluate the recent statement of the Prosecutor General Iryna Venediktova, who, at a joint meeting of the heads of law enforcement agencies held on October 26, 2021, emphasized the limitations of human and financial resources for pre-trial investigation.

What is a pledge? Place of pledge in the system of preventive measures.

The Criminal Procedure Code of Ukraine (hereinafter referred to as the Criminal Procedure Code of Ukraine) refers to bail as one of the preventive measures applied to a person during a pre-trial investigation or consideration of criminal proceedings in court on the merits.

The essence of the pledge. This is the sum of money determined by the court in the monetary unit of Ukraine, which is to be deposited into the special account of the court that chose this precautionary measure. By condition the transfer of deposited bail funds to the state income is a failure to fulfill the procedural obligations of the suspect/accused.

Since bail is a type of preventive measure, a number of mandatory procedural requirements or so-called filters are applied to it, which reveal its procedural nature and determine the direction of protection directly in the court process.

According to ch. h 1, 2 Art. 177 of the Criminal Procedure Code of Ukraine, the basis for the application of a preventive measure is the existence of a well-founded suspicion that a person has committed a criminal offense, as well as the existence of risks that give the investigating judge, the court, sufficient grounds to believe that the suspect, accused, convicted person may carry out the following actions:

1) hide from pre-trial investigation bodies and/or the court;

2) destroy, hide or distort any of the things or documents that are essential for establishing the circumstances of a criminal offense;

3) illegally influence the victim, witness, other suspect, accused, expert, specialist in the same criminal proceedings;

4) obstruct criminal proceedings in other ways;

5) commit another criminal offense or continue the criminal offense in which the person is suspected or accused.

During the consideration of the petition for the application of a preventive measure, the investigating judge is obliged to establish whether the evidence provided by the parties to the criminal proceedings proves the circumstances that testify to:

– existence of a well-founded suspicion that the suspect has committed a criminal offense;

– the presence of sufficient grounds to believe that there is at least one of the risks provided for in Article 177 of this Code, and indicated by the investigator, the prosecutor; – insufficient application of milder precautionary measures to prevent the risk or risks specified in the petition (Part 1 Article 194 of the Criminal Procedure Code of Ukraine).

The reader should remember that among the features of the application of the pledge are:

• the selection of bail as a type of preventive measure implies the mandatory effect of the presumption of innocence, that is, the selection of this measure does not mean proving her guilt;

• no preventive measure, from detention to personal commitment, is criminal responsibility for the incriminated crime. Accordingly, bail is not a fine, and its collection is not confiscation of a person’s property, which are types of punishment under the current Criminal Code of Ukraine. That is, when an acquittal is passed or criminal proceedings are closed at the stage of pre-trial investigation, the deposit must be returned to the person who deposited it;

• The Criminal Procedure Code of Ukraine provides for an exhaustive list of grounds for the application of a preventive measure, including the possibility of a person hiding, destroying evidence, illegally influencing the victim, witnesses, or otherwise obstructing criminal proceedings;

• the only purpose of choosing a preventive measure is to ensure the possibility to carry out a pre-trial investigation in a normal manner in the future, with minimal burdens for the suspect.

It seemed that the introduction of bail as a type of preventive measure had an adequate purpose to relieve the penitentiary system, which also includes places of pre-trial detention. In addition, establishing the possibility of posting bail for, first of all, non-violent crimes, also aimed at humanizing the criminal process, since the public danger of the persons who committed them cannot be equated with purely violent offenses.

Therefore, the introduction of alternative measures to ensure that suspects or accused persons fulfill their own procedural obligations in proceedings regarding corruption crimes, which are incriminated against top officials in Ukraine and actually belong to the category of white-collar crime, is a poorly balanced legislative approach. Unfortunately, the current judicial practice has somewhat distorted the vision laid down by the legislator in the criminal procedural law.

From the practical experience of working in the cases of suspects of the National Anti-Corruption Bureau of Ukraine with the participation of the Specialized Anti-Corruption Prosecutor’s Office, defendants of the High Anti-Corruption Court, we note that it is typical for the prosecution to demand the use of detention with alternative bail, which usually significantly exceeds the standard ones, among the entire range of preventive measures. dimensions determined by the Code of Criminal Procedure of Ukraine.

At the same time, law enforcement officers conduct searches of suspects and persons related to them, seize money and property, and take measures to seize all proper property and bank accounts. As a result, the essence of bail as a precautionary measure is distorted, as all this creates an extremely unfavorable financial situation for the person who is brought to criminal liability and his relatives, in which it is known that it is an impossible mission to pay exorbitant amounts of bail on your own.

The size of the deposit. What does the current law say?

According to part 4 Art. 182 of the Criminal Procedure Code of Ukraine, the amount of bail is determined by the investigating judge taking into account the circumstances of the criminal offense, the property and family status of the suspect, other data about his person and the risks provided for in Article 177 of this Code. The size of the bail must sufficiently guarantee the performance of the duties assigned to the suspect, the accused and cannot be knowingly excessive for him.

The Criminal Procedure Code of Ukraine imperatively determined the limits of the amount of bail, which can be assigned depending on the qualification and severity of the criminal offense. Yes, as a general rule for non-serious crimes, the amount of bail is from 1 to 20 subsistence minimums for able-bodied persons (hereinafter – PM), i.e. from 2,379 to UAH 47,580, for serious crimes – from 20 to 80 PM, i.e. from 47,580 to UAH 190,320 , and for especially serious crimes – from 80 to 300 PM, i.e. from 190,320 to 713,700 UAH.

According to para. 2 hours 5th century 182 of the Criminal Procedure Code of Ukraine only in exceptional cases, if the investigating judge, the court establishes that bail within the specified limits is not capable of ensuring the fulfillment by a person suspected of, accused of committing a grave or particularly grave crime, of the duties assigned to him, bail may be set in size which exceeds eighty or three hundred amounts of the subsistence minimum for able-bodied persons, respectively.

Therefore, going beyond these security amounts is possible only as an exceptional case , and not as a general rule, which is currently being followed as a trend. Unfortunately, modern judicial practice has completely unfoundedly chosen an indictment, which is accompanied by very frequent departures beyond the limits of the amount of bail defined by the law, taking into account only the presence of the amount of damage caused by the criminal offense declared by the prosecution, a certain amount of property in the possession of the suspect, and considering that such property is easily may be applied for bail.

What should be taken into account by the court when determining the amount of bail.

The amount of the deposit is greater than specified in clauses 1-3 of the 5th century 182 of the Criminal Procedure Code of Ukraine may be determined by the investigating judge, the court, taking into account the circumstances of the criminal offense, the property and family status of the suspect, the accused, other personal data and risks provided for in the Criminal Procedure Code of Ukraine. At the same time, the court, making a decision on the amount of the bail, must put on one lever of the scales a sufficient measure of guaranteeing the performance of the duties assigned to the suspect, the accused, and on the other – the impossibility of known exorbitant bail for the person.

In the case of ignoring the fact of known exorbitant bail for a person, the court distorts the essence of the preventive measure, which leads to the absence of an alternative to detention, due to the real impossibility of the person making bail and may indicate elements of pressure on him from the side of the prosecution to achieve the opposite result from the legal objective establishing the truth by adversarial procedural means.

Yes, in accordance with the provisions of Art. 182 of the Criminal Procedure Code of Ukraine, the amount of the bail must be determined by the degree of trust, in which the prospect of losing the bail will be a sufficient deterrent to prevent the desire of the person against whom the bail is applied, in any way to prevent the establishment of the truth in criminal proceedings. Therefore, the size of the bail must be established taking into account the property belonging to the person, which he can dispose of without hindrance and without harm to his relatives to make the bail, his property and family status, in other words, taking into account the identity of the suspect, the certainty that the prospect of losing the bail in in the event of his failure to appear before the investigator, prosecutor, investigating judge or court will be sufficient to prevent him from fleeing. However, along with this, the person must have a real ability to make a deposit of the appropriate amount.

In view of the extensive judicial practice, it is possible to single out the following circumstances, which the courts take into account when choosing a preventive measure in the form of bail and determining the size of the latter, among which:

lifestyle – in this case, judges analyze, for example, the frequency of crossing the border, whether the suspect has social ties outside the country, etc.;

family and dependents . In order to assign bail, the court must take into account the presence of disabled persons or children. After all, not only the suspect, but also other persons who are materially dependent on him will suffer when determining the excessive amount of bail. Bail cannot have the effect of restricting the rights or suffering of family members and people close to them.

Unfortunately, sometimes the suspect’s lack of dependents is taken into account by the court as a circumstance that does not prevent the suspect from applying excessive preventive measures, which, according to the authors, directly contradicts the general principles of the criminal process;

– presence or absence of a permanent place of work or legal sources of income for the suspect (the amount of official salary, income from dividends, deposits in banks, etc.);

housing – judges take into account whether the suspect has his own housing or housing that he legally rents.

One of the most opaque and, as it turned out in practice, speculative circumstances that are abused by law enforcement officers is the property status of the suspect, given that a person can have property both in ownership and only in possession, if it is registered under other persons or not at all to have nothing to do with this property, but according to the prosecution, to be related to it.

As a general rule, judges take into account the amount of immovable and movable property, the presence of corporate rights and involvement in the management of legal entities, the presence of significant amounts of declared funds. Difficulties in practice also arise when proving real property status if a person has cash or unofficial income. At the same time, law enforcement officers usually do not provide adequate evidence of a person’s connection with property and make only verbal declarations.

How to determine the fair amount of the deposit?

Although the given rules give an understanding of the factors that will be taken into account by the court, they cannot fully guarantee the transparency of the procedure for determining the amount of the bail. In any case, the discretionary powers of the investigating judge to determine the amount of bail provided by the Code of Criminal Procedure of Ukraine remain excessively broad.

The amount of bail is often chosen arbitrarily by investigating judges, the possibility of making bail without significant negative financial consequences for those persons or companies related to the suspect is not always subject to detailed investigation.

For example, a person owns the corporate rights of a company or is the ultimate beneficial owner of a number of legal entities. The prosecutor notes that in this case, the suspect will have the opportunity to post bail at the expense of the company’s funds. At the same time, is it fair that the operating funds of the client’s business will be taken out of the business and deposited as collateral?

And the situation when the suspect has dependent children or other family members should be considered with special care, which, unfortunately, is not observed in practice. Those funds that could have been spent on maintaining the normal functioning of the life of the suspect and his family will be sent to the bail, and therefore the negative consequences will be borne by both the suspect himself and his family members, which is both illegal and unfair to individuals , which do not appear in any way in the criminal proceedings. In such cases, the pledge should not be assigned in an amount that would actually prevent the mortgagor’s family from continuing their normal standard of living.

A typical situation is when the prosecuting party provides the annual income specified in the person’s declaration, certificate of available property, etc., to confirm the suspect’s property status. However, the costs incurred by the suspect or the accused in order to ensure his own dignified life and the life of his relatives are not taken into account for some reason. This does not mean that the entire annual income of a person is currently freely available for bail, moreover, the suspect and the accused often have very significant property obligations to the state or individuals and legal entities, the deadline for the fulfillment of which has already arrived, and the non-fulfillment of which may have as a consequence of the application of already civil legal sanctions to a person. Moreover, it is not always possible to sell the property that is in the possession of the suspect or the accused for making bail due to his arrest or the insufficiency of the period for the sale of the specified property, since the term for making bail is only 5 days.

As an example of the classic disproportionality of actions and the determination of the amount of bail, we can cite the decision of the High Anti-Corruption Court in case No. 991/4801/20 and subsequent decisions of the VAKS in criminal proceedings No. 52020000000000362. So, at first, the court set bail in the amount of 84 million. UAH. Motives for this decision regarding the size of the bail, the court determined the total income of the family members and the availability of funds. The court also did not ignore the large number of real estate objects owned by the suspect’s family.

On the one hand, the logic is clear, if not for one, but significant “but”. The specified property was seized by the relevant decisions of the investigating judge within the same criminal proceedings. Nevertheless, in the future, the position of the honorable judges did not change, and in justifying the amount of the bail, it was noted about the presence of a significant amount of property belonging to the person. However, such property could not in any case be used for bail, as it was under arrest in the same criminal proceedings.

It is obvious that the possession of a certain property itself cannot be a confirmation of the possibility of depositing a deposit at its expense. And the situation when the deposit is collected in parts, at the expense of the funds of relatives and acquaintances, is generally absurd. Because without a corresponding conviction and with the existence of the presumption of innocence, state coercion in the form of bail and the duration of the pre-trial investigation and trial puts the person who is brought to criminal responsibility and his relatives in an extremely difficult financial situation, which does not allow to ensure decent living conditions the last ones

The other side of this coin is the setting of bail, the amount of which is clearly excessive for the individual. What does it mean? Only one thing – the actual impossibility of releasing the latter from custody. Moreover, often the submission of a petition with a notoriously “cosmic” amount of bail is used by the prosecution as a way of psychological pressure on the suspect or the accused, and the corresponding inclination to cooperate with the pre-trial investigation body, including the provision of “incriminating evidence”, concluding a plea agreement etc.

The ECHR definitely considers such a situation to be a violation of the right to freedom and personal integrity. Probably the most famous decision of the ECtHR in this regard was the case “Gafa v. Malta”, where the applicant was kept in custody for almost a year after the bail was determined to be too high for him.

The ECtHR noted that the domestic courts had not taken the necessary measures to give the applicant a real opportunity to exercise his right to bail , thereby violating Article 5 of the Convention. At the same time, in this case, the applicant was released only thanks to his mother, who, in turn, had to involve other family members who were co-owners of the property provided as collateral. The ECtHR definitely stated that the burden of bail cannot be placed on relatives, and the national courts did not take the necessary measures to determine the appropriate amount of bail.

The fact that a person does not pay a deposit and at the same time remains in custody for a long time (more than a month) can also indicate an absolutely excessive amount of bail.

Another well-known decision of the ECtHR on bail is the case of ” Mangouras v. Spain “, in which the ECtHR indicated the possibility of setting the amount of bail in the amount of 3 million euros, only in view of the significant potential damage that could be caused by this crime. The ECtHR recognized that the amount of the bail was significant, but did not consider it excessive only in view of the exceptional nature of the case and the catastrophic consequences – environmental damage caused by pollution, for which the suspect’s employer was responsible.

However, in our legal realities, the prosecution often refers to this ECtHR decision, interpreting its meaning in a completely distorted manner. So, the key point in this case is that the bail for the suspect could have been made by the company-employer and owner of the vessel from which the oil spill occurred with subsequent environmental pollution and which bore full material responsibility for the actions of its employee. The court took into account that the amount of the bail was sufficient for the employer, and not for the individual, who had only 60 thousand euros at his disposal out of the 3 million euros assigned.

What should the defense party do upon receiving a motion to apply a preventive measure related to bail?

Thus, in view of the law enforcement reality in Ukraine, it is necessary to state that the investigator and the prosecutor will very often demand the introduction of an excessive, from the point of view of the suspect or the accused, amount of bail. The defenders must take measures to collect and provide the court with evidence to refute the arguments of the prosecution regarding the need to go beyond the standard amounts of bail provided for depending on the severity of the crime.

The first priority is the analysis of the client’s property status, not only in terms of his income, but also in terms of expenses, which are necessary for normal life activities. The court must understand that the application of bail to the suspect should not be an excessive burden and lead to the actual difficult financial situation of the latter, since it is not a punishment. Bail is only intended to ensure that the suspect or the accused fulfill procedural obligations during the period of pre-trial investigation or trial, that is, in fact, the verification of the investigative version and the trial.

The defense party must appeal that the prosecution itself must prove with evidence the property status of the suspect and the possibility of making bail in an amount that would not paralyze any other actual activity of this person. It is worth emphasizing the provisions of the Criminal Procedure Code of Ukraine, according to which the petition for the application of a preventive measure must contain not only a statement of the circumstances on the basis of which the prosecution came to the conclusion about the need for bail, but also references to materials and evidence that confirm these circumstances. In this aspect, it is necessary to request an evaluation of the evidence provided by the prosecution in accordance with Art. 94 of the CPC of Ukraine. At the same time, it should be noted that the investigating judge can make a decision only after evaluating the appropriate evidence, which is the original documents, physical evidence and expert opinions with all appropriate attachments, as well as directly obtained through oral questioning at the court hearing. All evidence provided by the prosecution must prove each circumstance defined in part. 1 Art. 177 of the CPC of Ukraine. At the same time, it is the evidence, and not just the prosecution’s assumptions, that must prove the proportionality of the proposed amount of bail for the accused. In the event that the court is not provided with proper and admissible evidence in this regard, it must refuse to grant the corresponding petition.

Authors: Yuriy SUHOV, Doctor of Jurisprudence, lawyer, partner of JSC “Arzinger”,

Anna REZNIKOVA, Doctor of Jurisprudence, lawyer, lawyer of JSC “Arzinger”,

Maksym PTUHA, assistant lawyer of JSC “Arzinger”

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