Bail in court: is it possible to buy your way out of a sentence?

Chapters of the article

• History of the Institute of Bail
• The meaning of bail
• Determination and amount of bail
• When is bail refundable?
• When is bail forfeited?
• Other bail institutes

History of the Institute of Bail

The institution of bail appears already in our oldest legislation regulating criminal proceedings. It was only exempted from legislation for most of the pre-Lisbon period, and just after the Velvet Revolution of 1989 it returned to our legal system. It has been called various things (e.g. property or money security), but this has not changed its essence at all.

As we mentioned in the introduction, bail is more common in American films than in Czech courtrooms. It is typical of the Anglo-American common law system. Let us recall, for example, the famous scene from the film Hair, when a group of hippies find themselves in jail after a riot at a banquet of the local elite. The fifty dollars they collect between them, however, is only enough to bail out one of them. Berger, the leader of the party, takes the money and his freedom serves to raise enough money for all of them.

However, bail is also encountered in most real cases in the USA. For example, in the case of the murder of the African-American George Floyd, which gave rise to the “Black lives matter” movement, we saw bail set at USD 1 million for the accused police officers.

The importance of bail

The main purpose of a bail bond is its security function. It serves as a kind of insurance against the accused wanting to avoid prosecution or subsequent punishment. This can be ensured in various ways, primarily by detention, to which the imposition of bail is largely related. Bail is only appropriate when one of the grounds for custody exists, i.e. when there is a reasonable apprehension that the accused:

• flee orabscond to avoid prosecution or punishment,
• will repeat the offence for which he is being prosecuted, will complete the offence he has attempted or will commit the offence he has prepared or threatened to commit.

If there is a third statutory ground for detention, namely the fear that the accused will influence witnesses who have not yet been heard, then a financial guarantee cannot be set.

However, it is obvious that the court will not send the accused to jail for many months if he stole a mobile phone worth CZK 11 000 from a shop. Thus, the law also sets a condition of a certain degree of seriousness of the crime, after the commission of which (or suspicion of it) detention (and thus potentially a monetary guarantee) may follow.

An accused who is prosecuted for a deliberate offence for which a maximum penalty of two years’ imprisonment is prescribed, or for a negligent offence for which the law prescribes a maximum penalty of three years’ imprisonment, cannot be taken into custody.

An exception may also be made in these cases if the accused:

• fled or went into hiding,
• repeatedly failed to appear before a summons,
• his identity is unknown and has not been established,
• has already influenced witnesses or co-accused, or
• has continued the criminal activity for which he or she is being prosecuted.

Determination and amount of the deposit

It follows from the foregoing that where the conditions for detention set out above exist, the authority deciding on detention may also keep the accused person at liberty or release him if he accepts a cash bond in the amount fixed by it.

Thebail shall be set only on application by the accused or, where appropriate, by another person offering to give security. Thecourt does not therefore take it of its own volition. However, its amount is not, of course, set by the accused himself (although he may propose it). The authority which decides on a money security first determines whether or not it is admissible in a given case and, if so, fixes its amount. At this stage, it is worth using the services of a lawyer to prepare the proposal so that it has a chance of success.

The law only sets a lower limit for the financial guarantee, namely ten thousand crowns. There is no upper limit and it is often in the hundreds of thousands or even millions. The amount should be determined taking into account the seriousness of the offence, the circumstances of its commission and also the financial circumstances of the accused. While a million-dollar bail for a billionaire does not mean that he will dig deep into his pockets, for many ordinary people it is a completely liquidating sum which they can never reach.

There is no time limit for the payment of the cash bail.

When is the deposit refunded?

The money bond remains in place until the end of the criminal proceedings and the time limit for its return depends primarily on the length and outcome of the proceedings:

• In the case of a custodial sentence, it is only returned after the start of the sentence.
• In the case of a financial penalty, it may be used to pay it (or it is returned after it has been paid).
• If the defendant is acquitted of the charge or if another sentence is imposed, the money bond shall be returned after the final conclusion of the prosecution.

When is the bail forfeited?

It follows from the nature of a money bond that it is forfeited when the intended security has failed, i.e. when the accused

• flees or goes into hiding,
• he culpably fails to appear at a summons to appear at a criminal trial which cannot be carried out without his presence,
• repeats the offence or attempts to commit the offence,
• avoids serving a custodial sentence or a fine.

Other institutes of detention

In addition to the posting of bail, our legal system also provides for other methods of detention which may be used to keep the accused at liberty.

This is the case when

• a trustworthy person or a citizens’ interest association guarantees the accused,
• the accused gives a written promise that he will lead a proper life, in particular that he will not commit any criminal offences,
• in view of the person of the accused and the nature of the case, the purpose of detention can be achieved by the supervision of the accused by a probation officer.

At the same time, he shall decide on the imposition of one of the provisional measures. The law further specifies these situations.