GUARANTEE IN CRIMINAL PROCEEDINGS

GUARANTEE IN CRIMINAL PROCEEDINGS

The measure of guarantee and the measure of pre-trial detention are inextricably linked, because the guarantee represents the realization of the principle of proportionality (Art. 95, paragraph 2), which obliges the court to abolish pre-trial detention and instead determine a milder measure as soon as the conditions exist that the same purpose can be achieved with such a measure. The connection between bail and pretrial detention does not stop only at the level of principle, but is also reflected in the circumstances that the bond cannot be determined if there is not one of the grounds for pretrial detention listed in Art. 102, paragraph 1 of the Criminal Procedure Act (Official Gazette No. 152/2008, 76/2009, 80/2011, 91/2012, 143/2012, 56/2013, 145/2013, 152/2014, 70/2017 , 126/2019, 126/2019, 80/2022), as well as that replacement of pre-trial detention with a guarantee is not possible before the decision on pre-trial detention is adopted.

Because of this connection, bail is often referred to as a substitute for pretrial detention.

Replacement of pretrial detention with bail

Pre-trial detention determined for the reasons stated in Article 123, Paragraph 1, Point 1 of this Act can be terminated if the defendant or someone else gives a guarantee for him, and the defendant himself promises not to hide and that he will not leave his place of residence without permission.

In the decision on pretrial detention, the court can determine the amount of the guarantee that can replace pretrial detention. The guarantee always amounts to a sum of money that is determined with regard to the gravity of the criminal offense, personal circumstances and the defendant's financial situation.

If it assesses that the guarantee cannot replace pre-trial detention, the court will state the circumstances due to which it finds that the replacement of pre-trial detention by guarantee is excluded.

In addition to bail, the court may order one or more precautionary measures as a condition of the bail.

The amount of the guarantee and the form of depositing the guarantee

By decision, the court will determine the amount of the guarantee and the form of depositing the guarantee, which may consist of the deposit of cash, securities, valuables or other movable property of greater value that can be easily cashed in and kept, or in placing a mortgage for the amount of the guarantee on the real estate of the person providing the guarantee.

The parties have the right to appeal against the decision on the amount of the guarantee and the form of depositing the guarantee within three days. After the bail decision becomes final and the defendant gives the promise from Article 102, paragraph 1 of this Law, and the bail is posted, the court will issue a decision on the cancellation of pre-trial detention, in which it will state the grounds for which pre-trial detention was ordered against the defendant and the conditions which the defendant must comply with.

After the decision on the abolition of pretrial detention becomes final, the court will deliver the final decision on the guarantee to the police for action in accordance with Article 104, paragraph 1 of this Law. This is how the court will proceed when it approves the defendant to leave his place of residence.

The police supervises whether the defendant acts in accordance with the conditions determined by the bail decision. The police immediately informs the competent state attorney and the court about the circumstances that point to the possibility of the defendant's breach of bail conditions.

If the defendant acts contrary to the conditions of the decision on the guarantee, the decision will determine the collection of the amount of the guarantee in favor of the budget, and the defendant will be sentenced to pre-trial detention.