Curcio bail bonds -The Difference Between a Bond and Bail
I. The Difference Between a Bond and Bail
The bond can be defined as a measure of direct insurance, adopted in most of the times of office, which seeks the availability of cash immediately or through the affection of movable or immovable property of easy realization and of known value, to through which it is intended to ensure the various purposes that are met with this bond, either the payment of civil liabilities or costs arising from the crime (ordinary bond), or evade provisional detention and ensure the presence of the investigated or prosecuted in the act of the trial (jail bond) or to guarantee the damages derived from the filing of a complaint in the exercise of the popular action (bond of complaint). The bail bond agent will pay the court a sum of the bail and will pay the rest if the defendant doesn’t show up.
The bail that is provided in the criminal proceeding can be considered as an assurance measure, in front of the person being investigated or prosecuted, or as a precautionary measure proper, in front of civil uninvestigated third parties, as well as direct and subsidiary. It is a measure that is not comparable to the precautionary measures of the civil process, since, at least in relation to the investigated, it is not agreed upon at the request of a party, without prejudice to the right of the victim to bring a civil action, but it must be adopted ex officio by the judicial body whenever there are data in the process that determine the existence of damages that must be answered by those who have been convicted of the crime.
II. Types of bonds that can be found in the criminal procedure
As can be seen from the definition given to bail in criminal proceedings, it should be noted that throughout the Criminal Procedure Law there are different types of bonds that must be provided by the different parties involved in the proceeding and that comply various purposes. The individualized examination of each one of them proceeds accordingly, starting from the general regime of the bail, regulated in articles 589 to 614 of the Law of Criminal Procedure, although Law 13/2009 has repealed and left without content. the articles 601 to 610 inclusive of the Criminal Procedure Act that corresponds to the one related to the coverage of civil liability and the costs derived from the crime.
1. Ordinary deposit
Through it, it is intended to guarantee the execution of the civil sentence that is contained in the criminal judgment and the payment of the procedural costs. His regime presents some differences in relation to the researched or with respect to the third civil liability, which will be revealed throughout this comment. As every measure of guarantee or assurance must be adopted prior to the issuance of the sentence, otherwise it would be an act of own execution and would not meet the purpose of assurance that is intended with it.
a) Legal nature
As it has already been anticipated, it is an assurance measure when it is adopted in relation to the one investigated in the criminal acts, which must be agreed ex officio by the judge, by imperative of article 589 of the Law of Criminal Procedure, and its purpose is the one of securing the pecuniary responsibilities that in definitive can be declared in the condemnatory penal sentence that can be dictated.
In the event that the bond is imposed on third parties who are civilly liable for the crime who are not in turn criminally liable for the facts, the measure must be considered as a true precautionary measure, similar to that of the civil process, in such a way that, fulfilling the same purpose of covering civil liability, the main difference is that in these cases the express request of the aggrieved party or the Public Prosecutor is necessary if the injured party is not present in the proceedings.
b) Requirements for the adoption of the measure
From the reading of article 589 of the Law of Criminal Procedure, the necessary concurrence of the following budgets can be highlighted:
- – Existence in the actions of rational signs of criminality against a certain person. It is a logical requirement because it is not possible to declare, in criminal proceedings, any civil liability without prior criminal conviction, as established in article 116.1 of the Criminal Code.
- – That the aggrieved party has not renounced the civil action or reserved it for its separate exercise before the civil jurisdiction. If the scope of possible civil liability is not going to be subject to criminal proceedings, it is not possible to adopt any kind of insurance measures on this matter.
- – It must take the form of a car.
- – The amount that is fixed on the car itself can not lower one third more than all the probable amount of the pecuniary liabilities. Through this increase in the guarantee is intended to ensure effective compensation in favor of victims or injured parties of the crime. For its setting, it will be necessary that, prior to the investigation stage, the value of the damages has been set or at least documentary bases exist that allow its calculation and specification.
- – Passive subject of the measure will be the investigated, prosecuted or criminally responsible for the facts, but also the third party responsible civil under the terms of articles 117 to 122 of the Criminal Code, which ranges from the cases of acquittals by application of exemptions of criminal responsibility as to the own responsibility of the State or of the people who have benefited, without participating, in the effects of the crime.
- – Everything related to the deposit or its incidences will be processed separately ( article 590 of the Criminal Procedure Law ).
c) Types of ordinary bond
Of Law 13/2009 gives new wording to Article 591 LEC, adapting it to the current reality and bringing it closer to the regime of the Law of Civil Procedure, which states that “The bond may be personal, pledge or mortgage, or by the surety that may be constituted in cash, by means of a solidary guarantee of indefinite duration and payable upon first request issued by a credit institution or reciprocal guarantee company or by any means that, in the judgment of the judge or court, guarantees the immediate availability, as the case may be, of the amount in question “. Therefore, in accordance with the provisions of article 591 of the Law of Criminal Procedure, the bond can be of three types: personal, credit and real, and this in turn can be subdivided into a security pledge or mortgage.
- 1 st Personal bond : can be borrowed, according to the terms of article 592 LECrim, by a person who meets the following requirements: be Spanish, have neighborhood in national territory, be fully in the exercise of civil and political rights and have sufficient solvency.
- 2. Credit bond: by means of this type of bond, equivalent to the bond provided in article 529.3.2º of the Law of Civil Procedure, a bail is configured whose main characteristic is the fast execution of the same through the claim to the credit institution that has lent it and that therefore meets the solvency guarantee necessary for the fulfillment of the purposes foreseen when the constitution of the bond. It is an open formula that includes as a main mechanism the bank guarantee, which is subject to compliance with the conditions of being of indefinite duration and payable at the first request, but which is also open to any other type of credit guarantee that may be offered, as long as it meets the requirement of immediate availability.
- 3rd Pledge Collateral: by means of the same, certain civil assets are insured against possible civil liabilities, such as the provision of a credit institution guarantee (which must be payable at the first request under the terms of the Civil Procedure Act ) or the arranging a bond insurance, as well as any other security interest that may arise and be accepted by the judge. It is the most common form of bail, usually through the consignment in the deposit account of the Court of the amounts of money that have been demanded.
- 4. Mortgage bond: consists of the creation of a mortgage on real estate in order to guarantee the payment of civil liabilities, after appraisal by two experts of the real estate, being able to be granted by public deed or apud acta.
d) Judicial approval
Whichever type of bail is provided to guarantee the pecuniary responsibilities of the criminal process, it will be necessary in any case that said bail be declared sufficient by the investigating judge, as required by article 596 of the Law of Criminal Prosecution. The effects that derive from this statement are different. In the event that sufficient is declared, the bond will be borrowed and the car will be recorded in the separate piece of civil liability, leaving without effect the embargoes that could have been agreed on the assets of those obliged to respond civilly. If, on the other hand, the insufficiency of the bond is declared, the seizure of property owned by the possible civil defendants in sufficient quantity to secure the monetary sentences will proceed.
e) Modification of the measure
Depending on the development of the investigation, the measures adopted for bail may be modified by the court, either by increasing said bail ( Article 611 of the Criminal Procedure Act ) or by reducing it, all in accordance with the possible increase or decrease in the value of possible pecuniary liabilities that may be declared in the judgment that is to be issued.
f) Execution of the bond
Once the corresponding civil liabilities have been declared in the judgment and the persons who must answer for them, they may pay the amount of these liabilities, leaving the bail given without effect, or failing to comply with said sentence, in which case the execution of the bail, following for this the rules of the enforcement ( articles 613 LECrim in relation to Article 536 of the Criminal Procedure Act ), applying the regulation of the Civil Procedure Law in terms of bonds, attachments and enforcement. The law 13/2009 gave a new wording to article 536 LECrim, so that the realization of the bond will be carried out through the rules of the enforcement of the Civil Procedure Act and such execution will be carried out by the Lawyer of the Administration of Justice.
2. Complaint deposit
In those cases in which a complaint is filed, article 280 of the Law of Criminal Procedureestablishes the general rule that the complainant must provide security for the class and amount set by the judge or court. The declared purpose of this measure is to respond to the results of the trial, that is, to guarantee the possible pecuniary liabilities of the complainant (essentially the costs that may be generated both by the investigation – expert reports – and the defendant) whether the dismissal of the case occurs as if there is an acquittal with a conviction in costs. It is an obligation that is imposed exclusively on the complainant, provided it is a private individual (natural or legal person) so the deposit cannot be requested from the Public Prosecutor.
Despite the claim of generality, Crimes establishes a series of exceptions to the obligation to provide bail for the filing of the complaint, which practically makes the exception itself. In this sense, they are not obliged to provide any bond for the presentation of a complaint, the offended or his heirs and legal representatives, as well as the widow or widower, ascendants and descendants or collateral in cases of murder or homicide. These groups of people are the ones who are usually going to file the complaints, as they are directly affected by the criminal acts, which implies that in the generality of those that are presented, the provision of bail will not proceed. In fact, the obligation to provide bail when filing a complaint is reduced to two cases:
- a) Exercise of popular action. In this case the complaint is filed by who is not offended by the crime ( articles 101 and 270 of the Criminal Procedure Law ) and the general rule of article 280 applies.
- b) Foreigners, even though they may be included in the cases of Article 281, provided that there is no reciprocity or is not provided for in the international treaties to which Spain is a party.
The bond is imposed freely by the judge, prior to the admission to process the complaint, so that if not provided by the complainant would not be admitted. The amount must be proportional and fair in relation to the actual exercise of the criminal action, in such a way that the fixing of bonds that are so high or disproportionate in relation to the personal and economic conditions of the complainant, that prevent the exercise of the popular action, must be rejected., which has been considered as a violation of the right to effective judicial protection. In these terms, article 20.3 of the Organic Law of the Judiciary is expressed.
3. Security as guarantee of freedom
The precautionary measures of a personal nature include bail as a guarantee of freedom, that is, that bail imposed on the defendant that must be provided for the dual purpose of ensuring the presence in the oral trial of the accused as well as so that he avoids provisional detention. It is an intermediate measure between the situation of provisional release and that of provisional detention. In order for this precautionary measure to be adopted, the requirements of article 503 of the Law of Criminal Procedure must be met., that is, the existence of rational evidence of the participation of the person being investigated in the criminal acts and that the penalty to be imposed for said crime, considered in the abstract, is greater than two years in prison. The difference in relation to provisional detention lies in the fact that the ends pursued by the prison are replaced by the guarantee of freedom in the form of a bond imposed by the court.
This measure is agreed by means of an auto, upon convocation of the person being investigated, his defense, the Prosecutor and the parties brought before the appearance of article 505 of the Law of Criminal Procedure. In said order, the judge will determine the quality (that is, the type of bond to be paid) and the amount considered sufficient for the fulfillment of the purposes of this measure. To fix the type of bond and the amount will have to meet various parameters that are noted in Article 531 of the Law of Criminal Procedure: nature of the crime, social status, background and other circumstances, substantially of economic content, which may influence in guaranteeing presence in the oral proceedings. The amount must be accessible to the economic conditions and possibilities of the researched, in order that it can really be borrowed, so it is not acceptable to set bonds of guarantee of freedom over which it is known the impossibility of the researcher to be able to provide them.
Provisional release on bail must also be accompanied by the determination of the obligation to appear before the appointed days and all those in which the accused was called by the judicial body. The first non-justified breach of this obligation authorizes the court to reduce the prisoner or defendant to prison, as authorized by article 540 of the Criminal Procedure Act. If the bond was personal or on property of a third party, prior to its reduction to prison, the Lawyer of the Administration of Justice (according to the new wording of article 534 by Law 13/2009 ) shall require the personal guarantor or the owner of the goods so that within ten days he presents the rebel (article 534 LECrim ), in such a way that if it is not presented there is a double consequence, for the researched his entry in prison and for the guarantor the loss of the goods delivered on bond or the opening of the enforcement for sale of said goods and the collection by the State, final recipient of the amounts obtained, of the amount of the bond fixed in the initial order. This loss of bail by the guarantor occurs at the stage of instruction or even preparation of the oral trial, but also once a final judgment has been handed down and the convicted person fails to comply with the sentence imposed.
This type of bond is sent in relation to the forms and the rest of the conditions for its estimation to the provisions of articles 591 to 596 of the Law of Criminal Procedure referred to in the previous examination of the bail for guarantee the pecuniary responsibilities derived from the crime. In case of acquittal or the defendant or prosecuted both at trial and compliance with the sentence or when he is in prison, the bond will be extinguished because it is meaningless to continue maintaining a precautionary measure that has lost its purpose.