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Publication date: 17.05.2024
How precautionary deposits are determined and what went wrong
In the conditions of a market economy, bail is one of the most effective measures applied to persons facing criminal liability. This effectiveness is determined, first of all, by the economic component of the preventive measure itself. The right of ownership and preservation of financial resources of the mortgagor is undoubtedly an important measure in preventing violations of criminal procedural legislation by suspects and accused persons. This conclusion is confirmed by the practice of applying the law and court decisions.
Currently, the leading positions in setting record bails belong to the High Anti-Corruption Court and the Pechersk District Court of the city of Kyiv. It is worth noting that the High Anti-Corruption Court, posting information on its website, noted that during the two years of the court's existence, the total amount of funds received in the form of pledges almost reached one billion hryvnias, and 65 million hryvnias have already been allocated to the state's income. The following can be singled out among the most famous cases and significant bail amounts that were applied by the High Anti-Corruption Court:
• UAH 100 million. – 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 bail, which was later reduced by the appeals court by 10 million;
• UAH 70 million. - 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 caused 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;
• UAH 80 million. - in the case of the former head of the Ukrbud company, of which UAH 30 million was later taken. 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;
• UAH 244 million. - for 3 persons involved in the case of providing a record-breaking bribe 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;
• UAH 30 million. - in the case of the former mayor of Odesa, although the prosecutor demanded 130 million bail for him
General Legal analysis of the situation
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Interestingly, the prosecution also has big ambitions. For example, in 2014, in the case of the former chairman of Naftogaz of Ukraine, a bail of 1.5 billion hryvnias was demanded, and in the case of an opposition MP and head of the political trade party "Opposition Platform - For Life", the prosecutor's office demanded a bail of 1 UAH 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 limitation of human and financial resources for conducting a 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. The condition for turning the deposited bail funds into state income is the failure of the suspect/accused to fulfill procedural obligations.
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 part 1, 2 of 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).It is worth remembering 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 an exhaustive list of reasons 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.
