The culture of applying bail in criminal proceedings came to the Russian Federation from the West. There it is a fairly popular mechanism, while in our country other preventive measures are more often chosen. For a long time, bail was applied only to foreign citizens, but now the courts are trying to reduce the number of persons in custody, including by using the bail mechanism.
Collateral concept
The concept of collateral is enshrined in Art. 106 Code of Criminal Procedure. It consists of transferring property or money to the body conducting the investigation of the criminal case or the court as a guarantee of ensuring the appearance of a person in the body of investigation or the court, as well as a guarantee of his proper conduct.
Initially, the term “pledge” was used in civil law and defined the interaction between individuals and organizations. But over time, the term began to be used in the context of criminal procedural relations, while indicating a slightly different aspect.
Although the procedure for applying the institution of bail is determined by both the Code of Criminal Procedure and the Civil Code, the Code of Criminal Procedure of the Russian Federation has priority for the purposes of criminal proceedings. The Civil Code regulates the mechanism of pledge in criminal proceedings only in aspects not regulated by the Code of Criminal Procedure of the Russian Federation.
Subject and content of the pledge
The subject of pledge may be:
- apartment, house, other real estate;
- cash, stocks and bonds, the turnover of which is allowed in the country.
All property, except money, is accepted as collateral only if documents on ownership and no encumbrance are provided. Property that cannot be foreclosed is not accepted as collateral.
Not all types of encumbrances are subject to state registration. Therefore, the person who pledges is required to submit a written receipt on the absence of encumbrance.
The restriction measure may be replaced by a pledge at any time until a decision is made on the case. A copy of the document is handed to the suspect (accused).
If a pledge was elected by a court order as a measure of restraint before the case is sent to the court, then the body conducting the investigation shall take the property or funds.
If this happened after the materials were sent to the court, the pledge is accepted by the court.
In any case, the fact of making a pledge is recorded in the protocol, and a copy of it is transferred to the person who contributed the funds.
The content of the collateral is provided by the authority that accepted the property.
The value of collateral as a preventive measure
In recent years, in Russia there has been a tendency towards a lack of places to keep convicted people. New premises are not being built, and the number of crimes is not reduced. In this regard, the courts practice the appointment of other measures not related to being in pre-trial detention centers and prisons. This is a house arrest, a written recognizance not to leave, and a pledge. For ordinary citizens, collateral is not a priority measure, since the amounts assigned by the court are often unbearable, and not everyone has the opportunity to mortgage real estate. Thus, the pledge is mainly applied to wealthy representatives of the company.
In the criminal process, bail is used as a measure of restriction of rights, which guarantees that the suspect or accused will come, if necessary, to the officers of the body investigating the crime or to the court. Many experts recognize the pledge as the most stringent measure after restricting freedom, since a person risks material wealth, and the size of the pledge, as a rule, is quite substantial.
For the Russian system, a pledge as a preventive measure is also a confirmation of compliance with international law. One of the acts provides for a person’s right to a preventive measure, not related to isolating him from society, but guaranteeing that he will be present at the trial in court.
A security deposit as a preventive measure in respect of a suspect may be assigned for 10 or 45 days depending on the qualification of the crime. If during this time the suspect changes his status to the accused, the preventive measure continues to be valid until a decision is made in the case. If the charge is not brought, and the period for which the rights and freedoms of the suspect may be limited expires, then the pledge shall be returned to the pledge holder.
Who has the right to impose a preventive measure
A pledge as a preventive measure is elected only by the court. A preventive measure may be imposed at any time before a decision is made in the case.
In addition, another measure of restriction can be replaced with a pledge. Usually they try to replace them with detention, as this is the most severe measure.
A petition for changing the measure of restraint on bail can be submitted both by the person himself or by any other person or organization.
The petitions are examined by the district court at the scene of the crime and its investigation. It is considered even if the investigator requests a different measure of restriction of freedom.
How is the amount of collateral determined
The decision on the amount in which the bail should be paid is made by the court based on the gravity of the crime, personality characteristics of the suspect (accused), financial condition of the person who will pay the funds. The Criminal Code establishes the lower limits:
- if the crime is of minor or moderate gravity, the size of the deposit is not less than fifty thousand rubles;
- if severe or especially severe - not less than five hundred thousand rubles.
A person may be released on the security of real estate. It has some requirements:
- the property must not be in a mortgage or have any other encumbrance;
- Be sure to submit the original documents of ownership.
The valuation of real estate should be made no earlier than 5 days before the filing of the petition with the court.
The consideration of the application should be carried out with the participation of both parties, and the suspect (accused) has the opportunity to express his opinion.
Deposit term
The term for the deposit is also determined by the court. If a person is in custody, then he remains there until the deposit is paid, but for no more than three days.
If another preventive measure was chosen prior to the pledge, then it shall be valid until the pledge is paid.
If no pledge has been paid by the due date, the court shall appoint another measure of restriction.
Who pledges
In addition to the person involved in the criminal case, any person or organization can deposit funds.
The essence of the case, the charges against the person, the circumstances due to which the pledge was chosen as a preventive measure, the conditions under which the person is released on bail, and the consequences that may occur if they are violated, are explained to the person.
A protocol is drawn up on the acceptance of property or money, one copy is handed to the person who contributed the money. If the object of the pledge is not money, except for the protocol, an act of acceptance of the property is drawn up.
If the mortgagor is a third party, then the consent of the suspect (accused) must be obtained. This is due to the fact that it will depend on him whether the mortgagor gets his money back.
What should I do if a person was released on bail of real estate, but as a result of some circumstances, the condition of the property was changed for the worse or it was legally disposed of?
The plenary session provides a solution to this problem. The pledger has the right to replace the subject of pledge with a similar one. If he cannot do this, the preventive measure will be changed by the court.
What is the fate of the pledge
What is the fate of the pledged funds or property? It depends on whether the person complied with the conditions on which he was released or not.
If the conditions were violated (did not appear to the investigator or the court, committed a crime, etc.), then the pledge is transferred to the state budget and is not returned to the person.
The court verifies that a person has violated the conditions so that the bail is not transferred to the state in error.
In all other cases, the issue of returning the pledged property or funds during the sentencing or termination of the criminal case is decided.
Recognizing the accused guilty or not guilty does not affect the return of the deposit.