ECtHR Against Excessive Bail: Why the Court Must Consider the Suspect's Actual Assets

In the Ukrainian anti-corruption system, the issue of applying preventive measures increasingly becomes a point of tension between the guarantees of the presumption of innocence and the prosecution's approaches to ensuring the procedural behavior of the suspect. That is why the decisions of the High Anti-Corruption Court acquire not only individual but systemic significance.

In one of the recently considered cases, the High Anti-Corruption Court of Ukraine decided to change the preventive measure from bail to detention, motivating this, among other things, by the impossibility of executing the previous ruling due to the person's financial inability to pay the specified bail amount.

This once again demonstrates the anti-corruption vertical's approach to determining the bail amount, which often does not take into account the suspect's real property capabilities. This, in turn, raises the issue of proportionality of the preventive measure and its compliance with the practice of the European Court of Human Rights regarding the prevention of the de facto punitive nature of bail.

When deciding to change the preventive measure to detention, the HACC proceeded from the procedural necessity to ensure the proper behavior of the suspect and minimize the risks of evading justice. At the same time, the argumentation regarding the transition to detention due to non-fulfillment of bail conditions actually reopens the question of the limits of permissible state coercion at the pre-trial investigation stage.

The suspect in the legalization of property obtained by criminal means was assigned bail in the amount of 20 million hryvnias by the court. At the time of the last hearing, the suspect had paid only 1 million 40 thousand hryvnias.

The defense provided the court with a large list of evidence of good faith. The suspect actively tried to sell his property at a significant discount from the market value. Correspondence with potential buyers was submitted to confirm genuine intentions. In addition, the suspect properly fulfilled all procedural obligations: wore an electronic monitoring device, appeared at all summonses in this and other cases.

Despite this, the prosecutor insisted on changing the measure to arrest, arguing that the suspect allegedly has access to significant financial resources, based on the prosecution's calculations.

The prosecutor's position regarding the justification of risks seems most interesting not by the suspect's actual behavior but by general assumptions. The prosecutor noted that fulfilling obligations at the investigation stage has a declarative character since after verdicts, defendants often disappear.

The High Anti-Corruption Court of Ukraine decided to detain the suspect directly in the courtroom, setting an alternative bail amount of 15 million hryvnias.

Formally, such a decision looks like an attempt to find a compromise between the prosecution's position and the suspect's right to an alternative preventive measure.

However, if the previously set bail of 20 million hryvnias turned out to be practically unaffordable for the suspect, then even reducing the amount to 15 million does not necessarily create a real possibility for release from custody, especially under conditions of urgent asset sales or limited access to funds.

Additional attention in this case was drawn to the prosecution's position. During the hearing, the prosecutor actually confirmed that the suspect properly fulfilled his procedural obligations. Despite this, the court still applied the strictest preventive measure — detention.

Such practice may indicate a strengthening of a formal approach to the bail institution, where the key criterion is not the assessment of the person's behavior or real risks, but the mere fact of not paying the full bail amount. In this case, bail risks turning from an alternative to detention into a de facto financial barrier to freedom.

This approach contradicts Article 5 of the Convention for the Protection of Human Rights. The application of detention requires not an abstract list of risks but individualized justification.

The ECtHR Standards

International law, in particular decisions in the cases of Alperin v. Ukraine and Bluks Savickis v. Latvia, establishes a clear requirement: the bail amount must be determined with reference to the accused's assets and his actual capabilities.

In the case of Alperin v. Ukraine, the ECtHR emphasized that bail must be proportional and realistically achievable. The amount should be assessed based on the confidence that the prospect of losing these funds will be a sufficient deterrent to prevent escape.

In the case of Bluks Savickis v. Latvia, the court stressed that authorities must pay as much attention to determining the bail amount as to the very advisability of detention. The court found a violation of Article 5 of the Convention because national courts did not make efforts to determine an appropriate bail level, considering the limited resources of the suspect's family.

In the case under consideration, although the HACC reduced the amount to 15 million hryvnias, it did not provide individualized justification as to why this figure is moderate for a person who could not accumulate even 2 million over a long period.

If the suspect demonstrated exemplary behavior for a long time, the basis for his detention due to non-payment of money looks like punishment for lack of funds rather than a security measure.

Setting bail at 15 million hryvnias for a person who demonstrated financial difficulties turns this measure into a purely formal one, which directly contradicts ECtHR practice. If bail becomes an instrument of unconditional deprivation of liberty, then the right to freedom in Ukraine becomes inherent only to those who have instant liquidity in million-sized amounts.

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