Can a huge bail replace justice?

Having taken the side of the investigation and prosecution in advance, the court treats suspects as criminals, even though their guilt has not been proven. Contrary to the law, it tries to keep them in custody at all costs, setting bail tens, hundreds and thousands of times higher than the maximum provided for by the Criminal Procedure Code (CPC), and does not even bother to justify this practice.

On the other hand, the moment when society gladly “swallows the bait” of exorbitant bail becomes the point at which the defendant in the case does not return to the front pages. After the bail is granted, the defendant’s further fate becomes of interest only to the defendant and law enforcement agencies, which leads to the possibility of sentences that do not correspond to the crime and to which society will no longer be interested.

How and when bail is applied

Granting bail is not a way to punish a person (suspect, accused), but merely to ensure that the person fulfills the obligations of procedural behavior imposed on him or her. The investigating judge only has to make sure that the bail is able to force the person to appear at the hearing and not to interfere with the investigation.

Preventive measures, including bail, are applied in case of:

• reasonable suspicion of committing a criminal offense and
• risks, which assume that a person will attempt to commit actions under Part 1 of Article 177 of the CPC.

At the same time, “reasonableness of suspicion” is a relative and evaluative category. The key consideration for judges is to establish the reality of the above risks, but here, too, the court hides behind the fact that such risks do not have to be proven, but are merely assumed. Such a formal position allows judges to legalize any decision that may be template, abstract and general in nature, which contradicts the rule of law.

The investigating judge is obliged to assess all the circumstances in the aggregate to determine a preventive measure. But the problem is that even with exemplary behavior, a person’s place of permanent residence, the ghost of risks, etc., the court is still able to make any decision solely at its discretion and with any “exorbitant” bail amount.

How the amount of bail should be determined

When applying custody to a person, the investigating judge must determine the amount of bail in the ruling and take into account

• circumstances of the criminal offense;
• property and family status of the suspect or accused;
• other data on the person and risks provided for in Article 177 of the CPC.

The amount of bail is determined within the subsistence minimum for able-bodied persons (AML) and for 2024 is as follows

• from 1 to 20 minimum living wages — minor crimes (UAH 3,028 — UAH 60,560);
• from 20 to 80 minimum wages — serious crimes (60 560 — 242 240 UAH);
• from 80 to 300 minimum wages — especially serious crimes (UAH 242,240 — 908,400).

In exceptional cases, if the court finds that bail within the specified limits is not able to ensure that the person suspected/accused of committing a serious or especially serious crime fulfills his/her obligations, bail may be set in an amount exceeding 80–300 minimum living wages.

Therefore, exceeding the upper regulated amount of bail must have additional factors — an “exceptional case”, and therefore additional court justifications:

• What, in the court’s opinion, determines the exceptional nature of a particular case?
• Why is the amount of bail provided for by the CPC not able to ensure the person’s compliance with procedural behavior?
• Justification for calculating the increase in the bail amount, especially given that such an increase may be hundreds of times higher than the CPC provides for.

The amount of bail should encourage the defendant to fulfill his or her obligations, but not be a punishment for him or her. However, if a person violates his or her obligations, the bail is collected as state revenue and is not returned. In such a case, if the person breaches his or her obligations, it is quite appropriate that the judge may increase the amount of bail or choose another more severe preventive measure.

For example, the bail was collected:

• UAH 30 million — from M. (for communicating with another person involved in criminal proceedings);
• UAH 9.8 million — from Kyiv City Council deputy T. (after he fled abroad);
• UAH 35 million — from A. (because he did not hand over his Israeli passport, claiming that he had lost it).

The largest bails of HACCU

In high-profile corruption crimes, courts often set bail in the amount of millions of dollars.

Examples of the largest bails set by the HACC:

• UAH 523 million (more than $13 million) to the former head of the State Fiscal Service, who is suspected of receiving more than UAH 722 million in undue advantage. The person stated that he could not afford to pay such bail, and in early June, the HACC reduced its amount by half — to UAH 261 million.
• UAH 402 million for the former Deputy Minister of Defense, who was arrested in February with the possibility of posting this bail. He is suspected of involvement in the procurement of overpriced food and low-quality ammunition for the army worth over UAH 1 billion.
• UAH 272.5 million — for a former MP, the investigation suspects him of co-organizing the creation of an organization, due to whose activities the state allegedly suffered losses of UAH 967 million in 2014-2018.
• UAH 260 million — this bail was set for a former MP suspected of attempting to bribe the mayor of Dnipro. The bail was later reduced to UAH 100 million
• UAH 229 million — bail for the ex-head of Naftogaz, UAH 229 million is equivalent to the amount of the bonus he is suspected of receiving. The bail was partially paid due to the funds raised.
• UAH 129 million and UAH 124 million were set for the businessmen, respectively. They are suspected of creating a criminal organization and bribing officials.
• UAH 107 million — to the former head of the Supreme Court, who is suspected of receiving USD 2.7 million in unlawful benefit (bribe). The suspect’s defense claimed that he could not pay this amount. The bail was reduced 7 times to UAH 18,168,000. Such a trend and the timing of changes in the bail amount indicate that it is unreasonable and arbitrary.
• UAH 100 million bail for an entrepreneur suspected of organizing a $400,000 bribe to a former deputy minister. Thus, the amount of bail determined was more than six (!) times higher than the amount of the bribe the person was suspected of receiving. Subsequently, the bail was reduced to UAH 10 million.

In its rulings, the HACC does not specify why a smaller bail amount would not achieve the goal of ensuring proper behavior of a person in criminal proceedings.

Problems with granting exorbitant bail

1. The media and politics make an enemy out of moderate bail. Bail is not a lesser measure of restraint, but an alternative to detention. It is equal in severity to the Criminal Procedure Code. The trial takes a long time before the verdict is handed down, and the court, with the cooperation of the prosecution, actually closes the public’s request for “justice” with exorbitant bail, using it as a non-alternative way to detain people whose guilt has not been proven by the state. At the same time, the media are satisfied with the result of such exorbitant bail, perceiving it as “temporary responsibility”, which distorts the purpose of bail and contributes to the politicization of the courts.
2. Justice does not require a person to wait for a verdict in custody — they are not guilty yet. It is the court’s duty to set bail in such a way that the procedural behavior of the person is ensured and the person is not unreasonably detained before the sentence is passed.
3. The court’s justifications for setting bail cannot be formal, abstract, or general. The absence of clear criteria in the criminal procedure rules for the justification of exceeding the amount of bail leads to the right of judges to increase bail as subjectively as possible without restrictions, up to outer space. Formal phrases such as “taking into account the financial condition of the person”, the list and description of the person’s property and property rights only create the appearance of justification, but do not reveal why this necessitates an increase in the amount of bail and, in particular, by how much such an increase should occur and why.
4. No right of a judge or any representative of the state (official) can be unlimited, so it is crucial that if a judge exercises a right, he or she explains why he or she exercised it. In the current system of justice, neither defense lawyers nor society can determine or verify whether a court’s decision on bail is reasonable. It is not a matter of wanting to “know for sure” but of understanding the logic of the court and the possibility of coming to such a conclusion in a clear way. It would be an interesting experiment to submit the same documents to different judges and compare their reasoning for setting bail. This is completely illogical and contrary to the law, which states that the amount of bail depends not on the circumstances, but on the judge to whom the case will be assigned.
5. Bail amounts do not correspond to the severity of the crime (e.g., the bail amount exceeds the damage caused by the crime, etc.) The crime and the damage have not yet been proven, there is no verdict, the person is not yet or not at all guilty (not recognized as such). Exorbitant bail can be a seriously dangerous weapon of the authorities against any opponent, including a political one, who can be accused and found “temporarily guilty” and held in custody with exorbitant bail.
6. Court decisions against a person with more negative consequences than requested by the prosecution (prosecutor). There are cases when the court sets bail at a higher amount than the prosecution requests. In fact, the court ceases to be an arbitrator in the process and takes over the functions of the prosecution, which violates the principle of impartiality to the parties and enters into competition with the parties. For example, in the case, the prosecutor requested bail in the amount of UAH 200 million, and the HACC set bail at UAH 260 million, which is more than the prosecutor requested.
7. When determining the amount of bail, judges actually replace the CPC standards with their decisions or completely level them. In fact, the judiciary acts as a new legislator, independently determining the amount of bail without any restrictions or criteria in this area. This poses a threat to justice and human rights in terms of unreasonable decisions or other abuses of power.
8. The court often refuses to reduce the amount of extremely large bail after it has been paid, even if the person has been behaving in an exemplary manner. In this case, the refusal is based on the rationale that if the bail has been paid, it is already a confirmation of its moderation, since the relevant money was found and paid for the person voluntarily. This is reminiscent of the allegory from Orwell’s Animal Farm, where the animals were allowed to not work on weekends, accompanied by a choice: “if you don’t work, you don’t eat”. In addition, in case of long-term detention, the state imposes on the person all the risks of money depreciation due to the fact that the state itself has been characterized by an unstable economy throughout its existence. Of course, one can gloat and rejoice at any loss of persons who are not well-liked or who are openly hated in society. But the state must be able to legally prove and bring to real responsibility by sentencing guilty persons, including confiscation of property, and not substitute the concept of responsibility to satisfy the whims of public attitudes.
9. Setting bail at an excessively high level puts on the back burner the achievement of its purpose — ensuring the procedural behavior of a person, in particular, ensuring the appearance of a suspect or accused, putting forward the prospect of obtaining as much money as possible by the state.
10. Bail should not be an excessive burden for a person and lead to a difficult financial situation for them or their family — it is not a punishment. Bail may not be a means of pressure on an unconvicted person, creating a situation where a person is forced to sell his or her real estate or other property, borrow money from others with interest on bail, or stop or close a business, or otherwise significantly change his or her lifestyle to post bail. High bail requirements create barriers for individuals, violating equality and justice. Less affluent people may not be able to effectively defend themselves if they are unreasonably detained.

Instead of conclusions

The wording that the state has a monopoly on violence is not correct from a legal point of view. At the same time, the tools of criminal prosecution are only in the hands of the state. The question arises whether the state is liable to an individual for the unlawful detention, imprisonment or prosecution of a person in case of failure to prove his or her guilt in proportion to the burden of such prosecution?

Of course, the figures are not absolute, but we can see that the courts award compensation to a person for illegal (false) criminal prosecution in the amount of UAH 1,378-10,000 (per month), for injury — up to UAH 1 million, for death — UAH 250,000-2 million. The payment in case of death of a soldier while defending Ukraine is at least UAH 15 million.

Such approaches of the state demonstrate an imbalance in the assessment of damage and the responsibility of the state itself to people compared to individuals to the state.

The creation of the HACC and other anti-corruption bodies has contributed to the formation of a public demand for fast, simplified, harsh justice, focused primarily on demonstrating effective punishment, even regardless of the quality of evidence and respect for human rights. Such “swift justice” will obviously conflict with the process of investigation and trial, which require more time and are objectively difficult and time-consuming procedures. Rights guarantees should apply to everyone without exception, and justice cannot be selective.

It seems that the material is not in line with the trend of anti-corruption organizations to increase responsibility for corruption crimes. This is where the manipulation lies. The state has all the tools to bring perpetrators to justice — prove it, bring them to justice. The only goal is to prevent substitution of concepts. The purpose of bail is to ensure procedural behavior, not to satisfy the whims of the political situation in its information policy of demonstrating the fight against corruption, where there are still “untouchables” and anti-corruption structures cannot get rid of political coloration.