Table of Content

• Comments
  • Purpose
    1. The purpose of this provision is abiding by the obligation emerging out of the paragraph 3 of Article 28 of the Constitution, as well as guaranteeing giving effect to the best case law of ECHR regarding the imposition, where appropriate, of the alternative security measures to the security measure of deprivation of freedom of the person. The amendments incorporated in this Article equally aim at this security measure be more extensively and as early as possible applied in practice.
  • Scope
    2. The scope of this Article is determining:

    a. instances when the security measure of bail and its criteria for its application;

    b. procedure followed for imposing the bail;

    c. proceeding authority being responsible for determining and enforcing this security measure;

    ç. consequences in the vent of failure to observe the imposed measure.

  • Comments
    3. Bail is one of the coercive measures set out in Article 232 of the CPC. The coercive measures have been enlisted by the lawmaker referring to their severity, thus starting with the prohibition to go abroad up to the temporary hospitalisation in the psychiatric hospital. Among the 7 types of the coercive measures, bail ranks fourth and its regulation is made further in Article 236 of CPC.

     

    4. The Lawmaker did not provide for any definition of the bail, however, reference is to the contents of Article 236 of CPC. it may be defined as one of the types of the coercive measures, by the conveyance of which the person being suspected of having committed a criminal offence and running he danger of evasion, guarantees that they shall not evade the trial to its completion, thus they, personally, or another person deposits an amount as a bail for this purpose to the benefit of the state.

     

    5. In paragraphs 1 and 2 of Article 236 of CPC there have been set out both cases when the lawmaker has provided for the possibility of applying the bail by the court: a) When the precautionary measure of pre-trial detention or house arrest has been established because of an escape risk, the court may decide its replacement, ordering the release of the person, if a bail has been offered by the person himself or another person to guarantee that he/she will not escape until the conclusion of the proceedings; b) The court shall accept the bail at the conditions set out in the above paragraph even if the precautionary measure of pre-trial detention or house arrest must be imposed to the person due to the existence of a risk of escape, thus allowing him to be in free state.

     

    6. There emerges out of the wording of the two first paragraphs of Article 236 of CPC that bail may only be applied as a security measure if the following conditions have been met: a) a security measure of arrest in prison or house arrest has or shall be imposed on the respective person; b) the security measures of arrest in prison or house arrest has been imposed or shall be imposed just due to the existence of the risk of escape of the person referring to the condition set out in letter b) of paragraph 3 of Article 228 of CPC. (Hyperlink); c) the suspect or another person offer an appropriate monetary amount as a guarantee to establish that they shall not leave to the end of proceedings, seeking to be investigated under no security measure.

     

    7. As it is discerned from the wording of paragraphs 1 and 2 of this Article the application of the measure of bail as a coercive security measure is connected closely to two other types of the security measure, that of arrest in prison, provided for in Article 238 of CPC that of the house arrest, provided for in Article 237 of CPC thus being an alternative of such security measures for the deprivation of the liberty of the person. This alternative of the implementation of the security measure of deprivation of liberty is explicitly foreseen in Article 5, par 3 of ECHR, as well as in par 3 of Article 28 of the Constitution, the latter delegating to the lawmaker the regulation of the procedure to be followed in such instances by law. To the effect of meeting this constitutional obligation, Article 236 of CPC has regulated the way how the person being deprived if his freedom may be tried while being out on bail. However, despite the Constitution and ECHR using the term ‘remand prisoner’, under which, as a rule, is deemed a person under the circumstances of arrest, the lawmaker has equalised with this person even the person being subject to the security measure of ‘house arrest’, since the consequence emerging out of this security measure is the deprivation of liberty of the person, regardless of them not being accommodated in a remand institution, but in their residence. Despite another measure, whereof the liberty of person is being deprived, being exempted from the application of the bail, namely the security measure under which the temporary accommodation of the person in a psychiatric hospital under Article 239 CPC is being imposed, since in the instances of imposing such a measure, the person emerges to be mentally sick and their release would risk their own life and that of other persons.

     

    8. Under the circumstances set out in paragraphs 1 and 2 of Article 236 of CPC for the application of the bail as an alternative security measures to the security measures of deprivation of liberty, the lawmaker has highlighted the fact that this alternative may be applied only upon such instance of the security measure of deprivation of liberty being imposed due to the existence of the risk of evasion of the person being suspected of having committed a criminal offence, under letter b) paragraph 3 of Article 236 of CPC. Thus, as long as the personal security measure for the deprivation of the liberty of person, prison arrest or house arrest, has been imposed based on one of these other conditions provided for in Article 228 of CPC, the bail can not be applied as a security measure. This is due to the fact that the main aim of provision of this security measure is to evade the application of the security measures restricting liberty, thus simultaneously guaranteeing that the person not evade the trial.

     

    9. Such regulation is at variance with the constitutional provision, as well as with the ECHR practice in interpreting Article 5, par 3, of ECHR whereby this court has held that the bail being provided for in such a provision aims at not guaranteeing the compensation of the damages, but, specifically, the presence of the defendant in the hearing (Manguras v. Spain[1] and Neumeister v. Austria[2] ). Certainly bail may be required as long as the conditions and criteria set out in Articles 228, 229 and 230 of CPC regarding the deprivation of liberty and whether the risk of escape my be avoided by way of the bail or other guarantees (Letelier v. Franc[3], Mus¸uc v. Moldavia[4], Aleksander Makarov v. Russia[5]). ECHR has highlighted that the courts shall, in the admission of the request for imposing the security measure of bail, evaluate initially the existence of the conditions and criteria for imposing a security measure of deprivation of liberty, ans subsequently whether the resumption of the deprivation of the liberty of person is indispensable. (Piotr Osuch v .Poland[6], Bojilov v. Bulgaria[7], Skrobol v. Poland[8]). The application of the bail as an alternative measure to those involving the deprivation of the liberty of the person is not an obligation of the court, however, it may be applied only in the instances where by way of this measure the presence of the person to the end of the trial is being guaranteed. In such a situation, of specific importance is the observation of the obligation by the court to make determinations under letter ç) of paragraph 1 of Article 245 of CPC regarding the substantiation of the judicial decision regarding the imposition of the security measure, thus indicating the cases of inappropriateness for the other security measures, in the instances where the security measure of deprivation of liberty is being imposed. This is due to the fact that as long as the decision imposing the security measure of arrest in prison or house arrest does not determine clearly that the cause whereof this measure as been determined is the existence of the escape of the person, the request for bail can not be admitted.

     

    10. Bail may be made available by the person being suspected of having committed the criminal offence, or another person, expressing the will to make available a bail to the benefit of the suspected person, to the end of the trial. This possibility has been provided for in law since, in the instances where the person is under arrest, they have it physically impossible to appear before the bank to deposit the amount of mail or it may well happen that the person can not afford if financially to make available such a bail. It is understandable that where the bail has been deposited by a person other than the suspect, as long as it has not been confiscated under par 6 of Article 236 of CPC, it shall, upon the completion of the trial, be returned to the person having deposited it.

     

    11. A discussion which might be held is the fact whether under bail is to be understood just a monetary amount, or such may be making available an asset of the suspect or another person to the benefit of the state, such as the immovable property, participations, shares etc. This discussion may emerge due to the fact that the lawmaker did not provide for any definition of the term ‘bail’ in the sense of Article 236 of CPC and referring to the civil law, the term property includes any asset and rights thereon, whereon property titles maybe assumed. Regardless of this fact, the way of wording the following paragraphs of Article 236 emerges to establish that the sole form of bail that our lawmaker has recognised is that of a monetary amount being deposited to the benefit of the state. This, paragraph 3 of the Article 236 of CPC makes use of the term ‘bail amount’. Further on, in paragraph 4 of this Article the lawmaker has again determined that upon the court admitting the request, it shall determine the ‘amount to be deposited, i.e., it may be only a monetary amount being deposited in the bank account of the court’. At the same time, even paragraphs 5 and 6 of Article 236 of CPC, the lawmaker proceeded to use the terminology ‘depositing the bail amount’, i.e., indicating that the law recognises only this form of bail. This choice of the lawmaker might have primarily intended to avoid the procedures of the verification of property which would be needed, for instance, in the event of putting in immovable property or movable assets as a bail, specifically under the conditions of problems with the property titles being encountered in our country. In the meantime, there should be highlighted that Article 5 § 3 of ECHR did not make any definition of the term “bail”, thus leaving this within the scope of discretion of the member states.

     

    12. Although the request for the application of the bail as an alternative security measure should be filed by the suspect, the lawmaker has, in paragraph 3 of the provision, provided for the body determining the amount of the bail due to be deposited to be the court. The law has, in this paragraph and in paragraph 4, determined the criteria to be followed by the court for determining the amount of the bail which should be deposited on the account of the suspect, as well as the timing within which should the depositing occur. The law maker has, specifically, provided for 3 criteria that the court should take account of in determining the amount of bail: a) real security needs; b) personal and family circumstances of the defendant; c) their financial situation.

     

    13. a) real security needs. This criterion shall be evaluated by the court based on the real possibility of escape of suspected person as well as the social danger posed by the criminal offence. The lower the real eventuality of escape of the suspect and social danger posed by the criminal offence they are suspected of having committed, the lower shall be the bail amount guaranteeing their presence to the end of the trial. The court shall, in setting out the bail amount, take account of the fact that this amount, referring to the personality and concrete circumstances of the person, be appropriate to guarantee that the probability of forfeiture by the person shall serve as a sufficient inhibition for suppressing any opinion to evade trial (Mus¸uc v. Moldavia[9], Manguras v. Spain[10]). Further on, where the criminal offence whereof the person having committed it is a serious criminal offence and its consequences are severe, i.s., there is a high financial loss, imposing a low bail amount would not guarantee non-escape of the person, the latter conceding to forfeiting the amount of the bail to evade a potential sentencing. Consequently, under such circumstances, it is appropriate to determine a bail amount proportional to the sustained damage (Kudla v. Poland[11]).

     

    14. b) personal and family circumstances of the defendant. By way of this criterion, the lawmaker has provided a range of discretion to the court to evaluate the real possibility of the escape of the person being suspected of having committed the criminal offence following the depositing of the bail, referring to their personal and family circumstances, which are different from one person to another. Thus, where a person is a foreign citizen and their entire family is living abroad, the amount of bail that they have to deposit to guarantee that they are not going to escape to the end of the trial is not the same compared to the instances when the person is living in an address within the country. At the same time, a person assuming parental custody for minor children does not pose the same danger of escaping compared to a person without such family relationship. It is the obligation of the court to argue on case basis the concrete personal and family circumstances of the person which have been taken into account by it.

     

    15. c) financial situation of the person. In order for the decision to be appropriate for implementation, in setting out the amount of bail it has to substantiate the grounds on which it was based for setting out the concrete amount (Georgieva v. Bulgaria), as well as it has to take account of the financial situation of the suspect (Manguras v. Spain[12] , Neumeister v. Austria[13], Iwanczuk v. Poland[14]), their solvency (Toshev v. Bulgaria[15]), and in certain cases it is not unreasonable to take account of the extent of damage that the person is sustaining due to the depositing of bail (Manguras v. Spain[16]). The court shall, in each case of setting out the amount of bail, take account of the opinion of parties, where the clarification of the concrete circumstances by the suspect is of essential importance, specifically regarding taking information from the court on their financial possibility and personal and family circumstances.

     

    16. Upon admitting the request for bail, the court shall set out even the time period within which this bail has to be deposited by the suspect or another person. This time period hears a relationship with the financial affordability of the person to ensure the amount set out by the court to be deposited as a bail, as well as with the days and working house of banks, under the circumstances when depositing the amount is always made to a bank account of the court or treasury branch.

     

    17. At the same time, in par 4 of the provision, there is set out the possibility of the court that, in addition to the bail, it can impose another security measure on the person, being from those set out in letters a), b) and c) of Article 232 of CPC. Such a measure may be set out by the court to guarantee that the person does not escape to the end of the trial, thus keeping them under continuous surveillance through the coercive measure, failure of abiding thereby would ensue the confiscation of the amount deposited as a bail and imposing the security measure of arrest in prison, under paragraph 6 of Article 236 of CPC.

     

    18. The second sentence of paragraph 4 of Article 236 provides for the person to remain under the security measure of arrest in prison or house arrest until the depositing of the bail. This provision, along with the one provided for in paragraph 1 and 2 of the provision, indicate even the way of decision-making by the court in imposing the bail.

     

    19. Upon the court admitting the request for bail from the person whereon a security measure of arrest in prison or house arrest has been imposed (paragraph 1 of Article 236), the court shall, in its decision, express itself on the admission of the request, by way of replacing, in the sense of Article 260 of CPC the security measure of arrest in prison or house arrest with that of the bail. The court shall, in its decision, specify that the immediate release of the person, as a consequence of replacing the security measure, is enforceable at the moment of depositing the amount of the bail. This means that until the establishment of the depositing of the amount by the suspect or another person on their account, the suspect shall remain under the security measure whereby they have been deprived of their liberty. Thus, in a sense the court decision for replacing the security measure from arrest in prison or house arrest to bail is a decision by dilatory condition, which failure of establishment incurs no consequence.

     

    20. Along the same arguing line, even where the court is examining the request of the prosecutor for imposing a security measure of arrest in prison or house arrest and holds that the request of the person for their release against bail is substantiated (paragraph 2 of Article 236), it shall, in its decision-making, set out the security measure of arrest in prison or house arrest, the replacement of this measure with that of the bail at the amount being determined and the ordering of immediate release of the person at the moment of depositing the amount of bail. Upon the court not setting out initially a security measure of arrest in prison or house arrest, the person can not stay any loner in remand imprisonment or in another location.

     

    21. In order to make the replacement of the security measure of deprivation of liberty with that of the bail effectively and immediately, the lawmaker has, in paragraph 5 of Article 236 of CPC, tasked the prosecutor to verify the relevant documentation and the enforcement of the court decision for the immediate release of the person. Upon being notified regarding the depositing of the relevant amount as bail by the suspect or another on their behalf, the prosecutor is obliged to make immediately the verification of the respective documentation. In separate cases, as the instance where the documentation is deposited after the working hours, the prosecutor has not more than 24 hours from the moment of being notified of the bail being deposited, to express himself regarding the enforcement of the court decision. Where the bail has been deposited according to the court decision, the prosecutor shall order the immediate release of the person. Otherwise, where the deposited amount is lower or the documentation is not accurate, he shall order the confirmation of the security measure of arrest in prison or house arrest.

     

    22. The consequences that the lawmaker has provided for the instances when the person does not abide by the conditions of bail, by not appearing in proceedings, are on one side, the confiscation of this amount by the court and its transfer to the benefit of the state and, on the other hand, imposing the security measure of arrest in prison for the person. Thus, in a way they are reinstated to previous conditions of deprivation of liberty. The lawmaker did not, in such a case, provide for the possibility of reinstating the security measure of house arrest, but just that of the arrest in prison, since as long as the cause whereof the revocation of the bail is made is that the person has evaded and did not appear during investigation or trial, they can not be under the circumstances required in Article 237 of CPC in order for the measure of house arrest be imposed on him.

     

    [1] See Decision of ECHR Manguras v. Spain , Application no 1205004, Decision dated 28.09.2010, hudoc.echr.coe.int/eng#{"itemid":["001-100686"]} last visit dated 05.03.2018, par 78.

    [2] See Decision Neumeister v. Austria , Application no 1936/53, Decision dated 27.06.1968, last visit dated 05.03.2018, hudoc.echr.coe.int/eng#{"itemid":["001-57544"]} par 14.

    [3] See Decision of ECHR Letelier v. France , Application no 12369/86, Decision dated 26.06.1991, cambodia.ohchr.org/sites/default/files/echrsource/Letellier%20v.%20France%20%5b26%20Jun%201991%5d%20%5bEN%5d.pdf last visit dated 05.03.2018, par 46..

    [4] See Decision of ECHR Mus¸uc v. Moldavia, Application no 42440/06, Decision dated 06.02.2008, www.legal-tools.org/doc/6cd038/pdf/ last visit dated 05.03.2018, par 42.

    [5] See Decision of ECHR Aleksandr Makarov v. Russia, Application no 15217/07, Decision dated 12/03/2009, freecases.eu/Doc/CourtAct/4542424 last visit dated 04.03.2018, par 139.

    [6] See Decision of ECHR Piotr Osuch v Poland, Application no.30028/06, Decision dated 3.11.2009, https://hudoc.echr.coe.int/eng#{"documentcollectionid2":["GRANDCHAMBER","CHAMBER"]} last visit dated 04.03.2018, par 39.

    [7]See Decision of ECHRBojilov k. Bulgaria, Application no 45114/98, Decision dated 22.12.2004, hudoc.echr.coe.int/eng#} last visit dated 04.03.2018, par 60.

    [8] See Decision of ECHR Skrobol v. Poland, Application no 44165/98, Decision dated 13.12.2005, hudoc.echr.coe.int/eng#{"itemid":["001-70114"]} last visit dated 03.03.2018, par 57.

    [9] ibid, par 41.

    [10] ibid, par 79.

    [11] See Decision of ECHR Kudla v. Poland, Application no 30210/96, Decision dated 26.10.2000, hudoc.echr.coe.int/eng-press last visit dated 03.03.2018, par 88.

    [12] ibid, par. 80.

    [13] ibid, par.14.

    [14] See Decision of ECHR Iwanczuk v. Poland, Application no 25196/94, Decision dated 15.11.2001, www.refworld.org/cases,ECHR,3fe6fe164.html last visit dated 03.03.2018, par 69.

    [15] See Decision of ECHR Toshev v. Bulgaria , Application no 56308/00, Decision dated 10.08.2006, hudoc.echr.coe.int/eng#{"itemid":["001-76687"]} last visit dated 03.03.2018, par 69-73.

    [16] ibid, para 81, 92.

  • Historic context
    23. Bail is one of the types of coercive measures provided for in CPC since the approval the law no 7905, dated 21/03/1995 ‘Criminal Procedure Code of the Republic of Albania’. However, in 2002 this provision was amended by the law no 8813, dated 13/06/2002 ‘On some addenda and amendments to the law no 7905, dated 21/03/1995 of the Criminal Procedure Code’. This provision has remained with the same working until the approval of the law no 35/2017.

     

    24. the amendment effected to this provision by the law no 35/2017 aims at making the provision more applicable in practice, while approximating its content to the practices and applied standards of ECHR while interpreting Article 5 § 3 of ECHR.
  • International acts

    Article 34/b of CPC is in compliance with the provisions of Article 5 § 3 of ECHR.

• International standards/International references/Best examples

  Decisions of the European Court of Human Rights 

  Article 236 of CPC has had under its attention the case law of ECHR regarding the cases of applying this security measure and the criteria which have to be evaluated by the court for its application.

• Legislative material
  No Comment
• Related articles

  Constitution: Article 27 and 28, paragraph 3.

  European Convention of Human Rights and Fundamental Freedoms: Articles 5 and 6.

  Articles 229, 230, 232, 237, 102, 238, 239, 260 of CPC.

• Sublegal acts
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• Decisions
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• Literature
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• Archive
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