OBLIGATIONS RELATED TO THE APPLICATION OF A PREVENTIVE MEASURE IN THE FORM OF BAIL: PROBLEMS OF IMPLEMENTATION IN THE CONTEXT OF THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

Abstract

The purpose of the article is to identify the problems in the fulfilment of the obligations related to bail as a preventive measure based on the approaches formulated in the case law of the European Court of Human Rights, as well as to offer recommendations on how to resolve them. Methods. The general philosophical basis of the study was formed by axiological and hermeneutical approaches. In particular, the first one allowed to carry out a value analysis of the fundamental human right to liberty and to assess the impact of the amount of bail to provide an effective alternative for the restriction of this right. Meanwhile, the second made it possible to apply an in-depth study and interpretation of the legal texts of the European Court of Human Rights judgments and the national legislation. When building the system of recommendations, we used the systemic and structural method, as well as the logical research method and the method of legal modelling with. Results and conclusions. The analysis of the legal positions of the ECtHR made it possible to conditionally single out the following standards and recommendations for national judges for ensuring the legality and reasonableness of the determination the amount of bail in criminal proceedings: 1) the main purpose of bail is to ensure the appearance of a person, not to punish him or her or to create conditions for compensation for the damage caused by a criminal offence; 2) the accuracy in determining the amount of bail as an alternative to possible keeping in custody should be equal to the thoroughness in justifying the continued keeping of a person in custody; 3) if the bail is provided by the suspect/accused, the key thing to consider when determining the optimal amount of bail is his/her assets (property status) and solvency. However, if the bail is provided by another person (the bail bondsman), the relationship between the bail bondsman and the suspect/accused should be taken into account to determine the effective bail amount; 4) the extent of the damage caused by the criminal offence may be taken into account as an exception when determining the bail amount - but this cannot be applied as a general rule due to the different purpose of the bail; 5) a suspect/accused person who is being considered the possibility of being granted bail must provide the court with information that may be necessary to adequately determine the amount of potential bail and be verified for this aim; 6) the amount of bail must be substantiated in the decision of the investigating judge or court, which will serve as an important guarantee of preventing arbitrariness; 7) failure of a person to fulfil the obligation to provide bail after it has been set may be a sign that the amount of bail is excessive and disproportionate for the suspect/accused.