Kardomosios priemonės – užstato – reguliavimo ir taikymo vertybinės ir praktinės dilemos
Fundamental and Practical Dilemmas in Regulation and Application of Financial Bail in Criminal Cases

Summary/Abstract: The article presents some findings from the research Project ”Towards Detention as Ultima Ratio“ (DETOUR), partially funded by the European Commission. It discusses the fundamental and practical dilemmas in regulation and application of financial bail in criminal cases. The results of the research have showed that dilemmas are universal at least in the Continental Europe. In the first part of the article the author discusses why the financial bail has no tradition of implementation in the Continental Europe despite the fact that practitioners often appreciate it as promising measure. The critical fundamental arguments against financial bail are discussed. The author admits that the financial bail indeed carries discriminatory nature on the social basis in cases where there is no possibility to adjust the amount of bail to the amount that would be affordable to the defendant and at the same time application of other less severe measures is not deemed as reasonable. It is also likely that in some cases illicit income might be offered for a bail. But on the other hand it is nearly impossible to prove it in the course of the making decision to apply the bail. However, the author concludes, that in the cases where aforementioned arguments against a bail are challenged with the principle that detention should be used as ultima ratio measure, the latter principle should prevail. In the second part the common practices in Lithuania to use the bail as the security for the payment of a fine are discussed. The author argues that present judicial practice to withhold bail money until the full payment of a fine is made has no ground in the law. The author suggests the amendments of the criminal procedure law that would make this option fully effective and legitimate. Furthermore common prosecution practice to force the provider of the bail to sign an agreement to give up the bail money for the recovery of a fine is challenged as illegitimate.

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