Measure of restraint in pre-trial proceedings – „guarantee in money”

  Measures of restraint are imposed on the accused in cases of a general nature in the event that there is a reasonable assumption by the pre-trial authorities that a crime of a general nature has been committed. The purpose of imposing the measures is to prevent the accused from absconding, committing a crime or thwarting the enforcement of the sentence that has entered into force. In this way, the normal course of the pre-trial phase of this stage of the criminal proceedings is ensured. Criminal - the procedural code provides for the following measures of restraint: recognizance, bail, house arrest, detention in custody. Depending on the severity of the criminal act, other measures of restraint may be imposed on the accused, such as: § Prohibition on approaching the victim; § Prohibition on leaving the country; § Temporary withdrawal of a driving license or other document on the basis of which a certain right is recognized; § Removal of the accused from office; §Accommodation of the accused for examination in a psychiatric institution or his forced bringing if he has not appeared for questioning for good reasons, if his appearance is mandatory or if the relevant authority finds it necessary. The act determining the measure of non-detention shall specify the following data:

• time and place of its issuance

• authority issuing it

• the case in which it is issued

• the three names of the accused

• the crime for which he is charged and the reasons for the measure determined

At the time of presentation of the Decree for the arrest of an accused and the adoption of a measure of non-detention by the pre-trial proceedings authorities, the accused undertakes not to change his place of residence without having notified the relevant authority in writing of his new address. The pre-trial proceedings authorities should, when determining the monetary guarantee, take into account the property status of the accused. The degree of public danger committed by the accused, the family situation, profession, health condition, age and other circumstances known at the time of determining the measure of detention should also be taken into account by the pre-trial authorities. Often, the pre-trial authorities set a high amount of bail. However, the negative consequences remain for the accused, since failure to pay the specified bail within the deadline may lead to the imposition of a more severe measure of detention. Therefore, the Legislator provides for the possibility, within three days of presenting the act, for the accused person or his defense attorney to appeal the amount of the bail. The relevant court of first instance shall immediately consider the case in a closed session and shall issue a Decision, which shall be final. However, what happens if, during the pre-trial proceedings, the first-instance judge granted your request and reduced the amount of the bail, but the accused did not learn of this court decision in a timely manner and was not served with the court act? Once lodged, the bail cannot be withdrawn. It is only released when the accused is released from criminal liability or from serving the imposed sentence, is acquitted, is sentenced to a non-custodial sentence or is detained to serve the sentence. Given the procedure for refunding bail, in practice there are cases in which the employees of the relevant administration do not wish to execute the court decision and refuse to partially refund the amount of money to the accused person involved. There is no legal obstacle to seeking your rights by notifying the Judge that, due to reasons beyond your control due to a delay in the court documents, you were unable to transfer your subsequent decision on time under – low amount of cash bail. Based on a Request submitted by you, the Judge may additionally order the performance of this action, with which the employees of the relevant administration are obliged to comply. Otherwise, you may appeal the refusal of the relevant administration within the statutory period.

This article examines some aspects of the topic and does not represent full analysis of the problem. 

Author: Petya Stoevska, Dr. Sc