Bail: The price of a very temporary freedom

1. The exceptional nature of preventive detention

1. The exceptional nature of preventive detention

In all democratic countries, everyone is presumed innocent until an independent and impartial judge finds guilt and decides, if necessary, to sentence him or her. If he is presumed innocent, he must be considered as such and must enjoy the same rights as all other citizens before this decision. There is, however, a fundamental exception to this principle. In some cases, a suspected person may be deprived of his liberty and placed in prison. Such a violation of the presumption of innocence can only be justified in cases of “absolute necessity for public security”. This is provided for by the law of 20 July 1990 on preventive detention. 

Where there is an alternative to pre-trial detention, the judge should prefer this alternative. This is the reason why many accused are released under various conditions related to their personality or personal situation. For example, when a person suspected of having committed a crime is a drug addict, he can be released under the condition of following a rehab. When it comes to a marital conflict, the violent spouse can be released under the condition of no longer reside or have any contact with his companion.

2. The bond as a guarantee against the risk of evasion of justice

2. The bond as a guarantee against the risk of evasion of justice

In the same vein, one of the reasons why the court may decide to place a person in custody is the risk that, released, he does not escape justice. This risk is even more important when the suspect is a foreigner or is in a precarious situation in Belgium. In these situations, the judge can mitigate this risk by requiring the delivery of a bond. The amount of this is determined according to the real or supposed income of the suspect. In the logic of things, the amount must be large enough to encourage the person concerned to remain at the disposal of the courts. The money is kept by the Caitasaid, those who have relatives who are able to assume the payment of a deposit can more easily reassure the judge by proposing the payment of a relatively large amount than the one who has nothing to offer, because he can not has no fortune to reassure the judge.

3. The bond as security against the disappearance of illicit funds

3. The bond as security against the disappearance of illicit funds

There are other situations in which the judiciary may require bail. Indeed, when the judge has serious indications that the suspect has participated in a major tax fraud, or has committed a criminal offense that has generated significant profits, one of his missions is to recover these funds. In the meantime, he may legitimately fear that, while he is at liberty, the defendant may take the necessary steps to remove the disputed funds from any official circuit. To mitigate this risk, the judge may be inclined to place the accused under arrest warrant. Preventive detention is not the only possibility left to the investigating judge. Article 35 (4) (2) of the Preventive Detention Act provides that the judge may give reasons for his decision to require the payment of a surety “on the basis of serious suspicion that funds or securities the offense was placed abroad or concealed. “

4. The return of the deposit

4. The return of the deposit

Whatever the reason for the payment of a security, it is returned to the person concerned if he has appeared at all stages of the proceedings and has complied with the execution of the judgment. If he is sentenced to a suspended prison sentence, it is sufficient that he has appeared at all stages of the proceedings.

5. When the deposit is awarded to the State

5. When the deposit is awarded to the State

If, for any reason attributable to him, the suspect does not appear at one of the stages of the proceedings or fails to serve the sentence to which he has been sentenced, he shall forfeit the amount of his security. The judge then finds that the defendant, or the accused, is not present, and declares the deposit “acquired” to the State.

The situation is different if, in the end, the person concerned is not convicted of any offense.