The issue of determination of bail’s size under Ukrainian legislation and legislation of Anglo-American countries: comparatively – judicial analysis

Abstract

The legal regulation of bail's institute as a preventive measure in Ukraine and Anglo - American countries, including the aim of its application, bail's size and criteria for its determination, is the subject matter of this article. The authors support a point concerning to the inadvisability of legislative regulation of maximum bail's size as well as a judge's opportunity in certain circumstances to apply bail, size of which is lower than minimum level. The purpose of article is to clarify strengths and weakness of legislative regulation of the bail in Ukraine, England and United States of America, to highlight a separate problems, arising in practice, to express recommendations and proposals regarding to the improvement of valid criminal procedural legislation of Ukraine. Analyzing provisions of criminal – procedural legislation of England and United States of America, the authors provide a few bail's classifications, depending on way of making a deposit. Besides it, the authors detect the drawbacks of legislative technique of Anglo – American countries regarding to not taking by judges into account material and family state of accused and suspected person, that leads to taking into custody a significant number of people, who are not financially secured to make a deposit. The decisions of the European Court on Human Rights as an international judicial institution regarding to determination of the bail's size, which will guarantee an enforcement of duties that a suspected person is obliged to do and will be defined taking into account a material state of a suspected person, are highlighted in this article. The authors also explore an issue of determination of bail's object and emphasizes on the necessity of clarifying of the money origin with the aim to avoid money laundering, which is offence, predicted by art.209 of Criminal Code of Ukraine. Investigating theoretical and practical aspects of the determination of bail's size, the authors make a conclusion regarding to the existence of certain difference in national legislation and legislation of Anglo – American countries, that is a result of belonging Ukraine to continental, and the USA and England – to Anglo – American countries. The authors state that prospective of further explorations of high stated issue are an improvement of legislation, implementation of world's experience, taking into account the legal positions of the European Court on Human Rights, etc.