The legislation provides for the possibility of establishing a preventive measure against the accused, including bail, in accordance with Art.
106 Code of Criminal Procedure. Restrictions on human freedom, established at the request of an official, are necessary for the smooth investigation of a criminal case and ensuring the safety of citizens. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00
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Collateral concept
The concept of pledge is enshrined in Art. 106 of the Code of Criminal Procedure of the Russian Federation. It consists of transferring property or funds to the body investigating a criminal case or the court as a guarantee of ensuring the person’s appearance before the investigative body or court, as well as guaranteeing his proper behavior.
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, denoting 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, for the purposes of criminal proceedings the Code of Criminal Procedure of the Russian Federation has priority. The Civil Code regulates the mechanism of bail in criminal proceedings only in aspects not regulated by the Code of Criminal Procedure of the Russian Federation.
Explanations
Property relations when choosing a preventive measure in the form of bail are regulated by the Code of Criminal Procedure, taking into account the provisions of the Civil Code.
When determining the specific amount of security in practice, authorized persons are guided by the general provisions on preventive measures.
It should be borne in mind that the amount of bail will not depend on the damage caused or the cost of the civil claim filed in criminal proceedings, but on the expected punishment. The security will be effective, for example, when the perpetrator of a crime faces a monetary penalty, and the amount of the bond is comparable to its size. This rule was used to determine, in particular, the amount of security under the Charter of Criminal Procedure of 1864.
Given the presumption of innocence, the amount of bail can be adjusted to the minimum fine. It seems unacceptable to set the amount of security in an amount greater than the amount of the fine as the intended punishment. As stated in Article 46 of the Code of Criminal Procedure, the amount of the penalty must be within the range of 25-1000 minimum wages or be the person’s income for a period of two weeks to one year.
Subject and content of the pledge
The subject of the pledge may be:
- apartment, house, other real estate;
- cash, stocks and bonds, the circulation of which is permitted within the country.
All property, except money, is accepted as collateral only if documents confirming ownership and absence of encumbrance are provided. Property that cannot be foreclosed on is not accepted as collateral.
Not all types of encumbrances are subject to state registration. Therefore, the person who makes the deposit is required to provide a written receipt indicating that there is no encumbrance.
The measure of restriction can be replaced by bail at any time until a decision is made in the case. A copy of the document is given to the suspect (accused).
If bail was chosen by a court order as a preventive measure before sending the case materials to the court, then the property or funds are accepted by the body conducting the investigation.
If this happened after the materials were sent to the court, the bail is accepted by the court.
In any case, the fact of making a deposit is recorded in the protocol, and a copy of it is given to the person who deposited the funds.
The maintenance of the collateral is ensured by the body that accepted the property.
Application of the measure by the court
At the judicial stages of proceedings, bail is set before the verdict enters into force. A resolution (definition) is issued on the application of the measure.
The rules of execution are regulated in the Instructions for office work in district courts, approved by order of the head of the Judicial Department No. 36 dated April 29. 2003
The secretary, on behalf of the judge, draws up a protocol on the acceptance of security. The document is prepared jointly with the head of the office management department with the participation of the mortgagor. The protocol is attached to the case materials, and a copy of it is given to the pledgor.
The importance of bail as a preventive measure
In recent years, there has been a trend in Russia of a shortage of places to hold convicted people. New premises are not being built, and the number of crimes is not decreasing. In this regard, the courts practice the appointment of other measures that are not related to being in pre-trial detention centers and prisons. This includes house arrest, recognizance not to leave, and bail. For ordinary citizens, bail is not a priority measure, since the amounts assigned by the court are often prohibitive, and not everyone has the opportunity to mortgage real estate. Thus, bail is used mainly in relation to wealthy members of society.
In criminal proceedings, bail is used as a measure of restriction of rights, guaranteeing that the suspect or accused will come, if necessary, to the employees of the body investigating the crime or to court. Many experts recognize bail as the most stringent measure after restriction of freedom, since a person risks material wealth, and the amount of bail is, as a rule, quite significant.
For the Russian system, bail as a preventive measure is also confirmation of compliance with international law. One of the acts provides for a person’s right to a preventive measure that does not involve isolating him from society, but guarantees that he will be present at the hearing of the case in court.
Bail as a preventive measure against a suspect can be assigned for 10 or 45 days, depending on the qualifications of the crime. If during this time the suspect changes his status to accused, the preventive measure continues to be in effect until a decision is made on the case. If charges are not brought, and the period for which the rights and freedoms of the suspect may be limited expires, then the bail is returned to the pledgee.
Commentary on Article 106 of the Code of Criminal Procedure of the Russian Federation
1. Bail can be posted either directly by the accused or suspect, or by any other person or organization that must be informed of the essence of the case (suspicion, accusation) for which this measure of restraint has been chosen, as well as the related obligations and the consequences of their violation.
2. The pledgor is informed of the essence of the case for which this preventive measure has been chosen. This means that in the protocol on acceptance of bail, in addition to recording the very fact of acceptance of bail, it is recommended to indicate the time, place, method, consequences and other circumstances of the commission of the crime, as well as the legal assessment (qualification) of the socially dangerous act committed by the accused (suspect).
3. The procedure for accepting a pledge is not fully regulated by law. In practice, this preventive measure can be chosen, for example, like this. Having received a petition to elect bail as a preventive measure, the investigator (inquiry officer, etc.) makes a decision to file a petition with the court to elect bail as a preventive measure. The court in the manner established by Art. 108 of the Code of Criminal Procedure, selects the named preventive measure and determines the amount of bail. The decision is then communicated to the pledgor. The latter is explained that he must deposit with the body in charge of the criminal case the amount specified in the court order and bring the investigator (inquirer, etc.) a receipt indicating this (if a preventive measure in the form of bail has been chosen for the person in connection with the change detention, a receipt for posting bail should be presented to the court, which immediately issues a decision to release the suspect or accused from custody, and only after that transfer a copy of this document to the preliminary investigation body). After the pledgor brings the specified receipt, the investigator (inquiry officer, etc.) draws up a protocol on the acceptance of the pledge, a copy of which is given to the pledgor. From this moment on, this preventive measure is considered applied. The court that made the decision to select the required preventive measure is informed about this circumstance.
4. Taking into account the provisions of parts 1 and 3 of the commented article, the court must check in relation to the property accepted as collateral: whether it relates to property that can be the subject of collateral in a criminal case, whether the citizen’s property is included in the list provided for in Art. 446 of the Code of Civil Procedure of the Russian Federation “Property that cannot be foreclosed on under executive documents,” and whether federal law establishes a ban on foreclosure on property accepted from an organization.
5. In addition, when accepting real estate, stocks and bonds admitted for public circulation in the Russian Federation, valuables as collateral, the court should establish how the mortgagor’s ownership of them is confirmed, and if such a right is confirmed, find out whether it has restrictions ( encumbrances). For these purposes, the court must examine original copies of documents confirming these circumstances.
6. The court must take into account that the procedure for assessing the subject of pledge is determined by the Government of the Russian Federation. According to the Regulations on the assessment, maintenance of the subject of collateral in a criminal case, its management and ensuring its safety, approved by Decree of the Government of the Russian Federation of July 13, 2011 N 569, property pledged as collateral, with the exception of money, is subject to assessment in accordance with the legislation of the Russian Federation on assessment activities. In accordance with clause 10 of the Regulations, the assessment of property must be carried out no earlier than 5 working days before the date of filing the application for the application of the pledge.
7. Taking into account that the subject of a pledge as a preventive measure can be movable property in the form of money, valuables and stocks and bonds admitted to public circulation in the Russian Federation, or real estate, when resolving issues related to ownership, the provisions of the Civil Code should be taken into account Russian Federation on bail, as well as features of criminal proceedings.
8. If the property that is the subject of the pledge is destroyed or damaged (for example, the property was damaged as a result of a fire) or the ownership of it or the right of economic management is terminated on the grounds established by law, the pledgor has the right to restore the pledged item within a reasonable time or replace it with another of equal value property (Article 345 of the Civil Code of the Russian Federation). Otherwise, the preventive measure must be changed.
9. Based on the provisions of Part 3 of the commented article, when determining the type and amount of bail, courts must take into account the nature of the crime committed, information about the identity of the suspect or accused, the property status of the pledgor, as well as the nature and extent of the damage caused by the crime.
10. Within the meaning of parts 4 and 5 of the commented article, the pledge should be considered made if the pledgor deposited or transferred the subject of the pledge to the court or body in charge of the criminal case, and the latter accepted it, about which a protocol was drawn up. If the subject of the pledge is real estate, stocks and bonds admitted to public circulation in the Russian Federation, valuables, an act of acceptance and transfer of the subject of pledge must be attached to the protocol (clause 5 of the Regulations on the assessment, content of the subject of pledge in a criminal case, its management and security safety).
11. In accordance with Part 7 of the commented article, along with the type and amount of the bail, the court is obliged to set the deadline for posting it.
12. If the suspect or accused is detained, then the court, provided that the detention is recognized as legal and justified, has the right to set any period not exceeding 72 hours for the posting or transfer of bail, while deciding the issue of extending the period of detention of the person for the same period. In this case, the court in the decision must indicate the date and time of the decision, as well as the date and time by which bail must be posted, transferred and until which the period of detention of the suspect or accused must be extended.
13. If, within the period established in the court decision, the bail is not paid or transferred, or is paid or transferred, but not in the form and (or) amount determined by the court, the court, upon a petition filed in accordance with Art. 108 of the Code of Criminal Procedure, considers the issue of choosing a different preventive measure in relation to the suspect or accused.
14. In the case when a bail is elected when considering the issue of extending the period of detention or house arrest, in the decision, along with the date by which the bail must be paid, it is necessary to indicate the period for which the validity of these preventive measures is extended, if the bail will not be paid or transferred within the period established by the court or will be paid or transferred in a different form and (or) amount.
15. Based on the provisions of parts 2 and 7 of the commented article in conjunction with the provisions of Part 5 of Art. 107 and part 3 and 7.1 art. 108 of the Code of Criminal Procedure, the court has the right to make a decision on choosing a preventive measure in the form of bail not only based on the results of consideration of the petition of the investigator, agreed with the head of the investigative body, or the petition of the interrogating officer, agreed upon with the prosecutor, but also based on the results of consideration of the petition filed by the suspect, the accused, his defense attorney, a legal representative or another individual or legal entity, as well as based on the results of a discussion at a court hearing of the possibility of using alternative measures to detention or house arrest. The court's examination of the factual and legal grounds for choosing bail must be carried out in an adversarial environment and equality of the parties, ensuring that the suspect or accused has the opportunity to convey his position to the court, in particular about the type and amount of bail.
16. The obligations associated with the posted bail should be considered violated if the suspect or accused evaded appearing when called by the investigator, inquiry officer or court, or in any other way obstructed the criminal proceedings or committed a new crime.
17. When considering the issue of violation of obligations related to the posted bail, in the event of a person’s failure to appear when called by an investigator, inquiry officer or court, the court must check the arguments that the person did not avoid appearing.
18. Having established the fact of violation of the obligations associated with the posted bail, the court resolves the issue of changing the preventive measure (to house arrest, detention) and turning the bail into state revenue. Based on the provisions of Part 9 of the commented article, the issue of turning the pledge into state revenue in connection with a violation of the obligations associated with posting the pledge is resolved only by the court and in the manner prescribed by Parts 3 and 4 of Art. 118 Code of Criminal Procedure of Russia.
19. The criminal procedure law does not provide for other grounds for foreclosure on bail, including for the purpose of executing a penalty in the form of a fine under a court verdict <528>. ——————————— <528> See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2013 N 41 “On the practice of courts in applying legislation on preventive measures in the form of detention, house arrest and bail” // Bulletin of the Supreme Court of the Russian Federation. 2014. N 2.
20. A bail placed in accordance with the commented article to ensure the appearance of an accused, a suspect when summoned by an investigator (inquiry officer, etc.), or a court, is a preventive measure and is turned into state revenue only if the person evades appearing before the specified authorities. The court's use of collateral for damages is not based on the law. If the preventive measure has not been violated, the deposited amount must be returned to the pledger <529>. ——————————— <529> See: Review of judicial practice of the Supreme Court of the Russian Federation for the first quarter of 1997 // Bulletin of the Supreme Court of the Russian Federation. 1997. N 8.
21. A preventive measure in the form of bail against the suspect, in accordance with the provisions of Part 1 of Art. 100 of the Criminal Procedure Code, is valid for no more than 10 days, and in cases provided for in Part 2 of this article - no more than 30 days. If charges are brought within the specified period, then the bail continues to be valid throughout the preliminary investigation and the presence of the criminal case with the prosecutor with an indictment, indictment, indictment, as well as in court when the case is being considered <530>. ——————————— <530> See: Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 19, 2013 N 41 “On the practice of courts in applying legislation on preventive measures in the form of detention, house arrest and bail” // Bulletin of the Supreme Court of the Russian Federation. 2014. N 2.
22. See also commentary to Art. Art. 97, 99, 116, 118, 228 Code of Criminal Procedure of Russia.
Who has the right to impose a preventive measure?
Bail as a preventive measure is chosen only by the court. A preventive measure may be imposed at any time before a decision is made in the case.
In addition, a pledge can replace another measure of restriction. Usually they try to replace it with detention, since this is the most severe measure.
A petition to change the preventive measure to bail can be filed either by the person himself or by any other person or organization.
Petitions are considered by the district court at the place where the crime was committed and its investigation. It is considered even if the investigator requests another measure of restriction of freedom.
How is the amount of bail determined?
The decision on the amount in which bail must be paid is made by the court, based on the severity of the crime, the characteristics of the personality of the suspect (accused), and the financial condition of the person who will pay the funds. The Criminal Code of the Russian Federation sets lower limits:
- if the crime is of minor or moderate gravity, the amount of bail is not less than fifty thousand rubles;
- if it is serious or especially serious - not less than five hundred thousand rubles.
A person may be released on real estate bail. There are some requirements for it:
- the property must not be mortgaged or have any other encumbrance;
- It is imperative to submit original documents of ownership.
The assessment of the value of real estate must be carried out no earlier than 5 days before filing a petition with the court.
Consideration of the petition must be carried out with the participation of both parties, and the suspect (accused) has the opportunity to express his opinion.
Additionally
If the suspect/accused behaves inappropriately, in addition to the fact that the pledged values will be turned to the benefit of the state, a more stringent preventive measure may be applied to the person. The transfer of property is formalized by a court decision.
In other cases, upon expiration of the period for applying the measure, the deposit must be returned to the pledgor. If security was provided by the accused, civil defendant or suspect, the amount of the bond (part of it) may be seized according to the rules established by Article 115 of the Code of Criminal Procedure.
Deposit deadline
The deadline for posting bail is also determined by the court. If a person is in custody, he remains there until bail is posted, but for no more than three days.
If another preventive measure was chosen before the bail, it is valid until the bail is posted.
If bail is not paid within the established period, the court imposes another measure of restriction.
Who pays the deposit
Apart from the person involved in the criminal case, any person or organization can contribute funds.
The person is explained the essence of the case, the charges brought against the person, the circumstances due to which bail was chosen as a preventive measure, the conditions under which the person is released on bail, and the consequences that may occur in the event of their violation.
A protocol on the acceptance of property or money is drawn up, one copy is given to the person who contributed the money. If the subject of the pledge is not money, in addition to the protocol, an act of acceptance and transfer of property is drawn up.
If the pledgor 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 will receive his money back.
What to do if a person was released on the security of real estate, but as a result of some circumstances the condition of the property was changed for the worse or it was alienated legally?
The Plenum provides a solution to this problem. The pledgor has the right to replace the pledged item with a similar one. If he cannot do this, the preventive measure will be changed by the court.
Mortgage
This term is used when mortgaging a plot of land or other real estate. The essence of such security is that the debtor uses and owns the pledged property, but if he fails to fulfill his accepted obligation, the creditor can satisfy his claims by selling this property.
It is necessary to distinguish a mortgage from mortgage lending. In the latter case, a person receives a loan secured by real estate. In the case of a mortgage, the subject is given funds to purchase an object, which is pledged to the banking organization as a guarantee of repayment. As a rule, large sums are issued against real estate.
A mortgage is also called collateral of an existing property to obtain a targeted loan. For example, a person takes out a mortgage on a plot of land on which he intends to build a house. Funds can also be used to repair an existing facility.
