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Digital Object Identifier
doi.org/10.36475/L.A.W.14
Abbreviated Title
L.A.W.
Issue
Online version
Print version

In This Article

    Abstract - Journal Law and World

    Volume 8, issue 3

    The Problem of Using Imprisonment to Secure Bail in Criminal Proceedings

    Authors: Dodo Jugheli

    Dodo Jugheli

    Master of law, Labour Inspection Office, Georgian Bar Association, Kutaisi, Georgia

    Email: dochi.jugheli@gmail.com



    Affiliation: Master of law, Labour Inspection Office, Georgian Bar Association, Kutaisi, Georgia

    Abstract: There is a provision in the criminal procedural legislation that creates a danger of covert violation of the basic human right – freedom. This threat arises at the first presentation session against the detained accused, when the court assigns the accused another, lighter, restraining measure instead of imprisonment. Despite the courts decision, the defendant is not immediately released from the courtroom. According to the Code of Criminal Procedure, at this time there is the use of imprisonment for the purpose of providing bail, i.e. "custodial bail". The courts decision to release the person on bail is enforced later, after the provision of the law has been fulfilled. In particular, the arrested accused is obliged to pay a certain amount of money as bail, in order to enforce the decision against him. As a result, the determining factor for the accuseds release is not the court decision, but his solvency. In case of non-payment of the amount, he remains in prison, which leads to an unjustified violation of the presumption of freedom. Making a decision on release by the court is of a formal nature, thus creating a practice of low protection of human freedom, incompatible with international standards. As a result of such an approach, the accused on bail is unjustifiably kept in prolonged detention and, moreover, he is deprived of the opportunity to appeal the said treatment.

    Keywords: Bail, Jail, Principle, Restriction, Harmonization


    Language: GE

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    BIBLIOGRAPHY:

      References:

    1. Bokhashvili B., Mshvenieradze G., Kandashvili I. (2016). Procedural Rights of Suspects in Georgia The Procedural Rights of Suspects in Georgia;
    2. Lomsadze M. (2015). Criminal Procedure, 5th Revised and Completed Edition, Tbilisi;
    3. Trexel Sh. (2009). Human rights in the criminal justice process, Tbilisi.

      4. Current Editions:

    4. Zorbenadze O., (2018). "Use of imprisonment to ensure the use of bail", see Journal of Law: "Justice and Law", 1'18.

      5. Legal Acts:

    5. European Convention for the Protection of Human Rights and Fundamental Freedoms (04.11.1950); https://matsne.gov.ge/ka/document/view/1208370?publication=0 [last view date: 9 September, 2022]
    6. Constitution of Georgia (24.08.1995); https://matsne.gov.ge/ka/document/view/30346?publication=36 [last view date: 9 September, 2022]
    7. Criminal Procedure Code of Georgia (09.10.2009); https://matsne.gov.ge/ka/document/view/90034?publication=146 [last view date: 9 September, 2022]

    Notes:

    1. See, judgment of the Tbilisi Court of Appeal of June 29, 2017, case No.-1g/895-17, p. 6. (In Georgian)
    2. See, judgment of the Tbilisi Court of Appeal of June 29, 2017, case No.-1g/895-17, p. 4. (In Georgian)
    3. See, judgment of the Tbilisi Court of Appeal of June 29, 2017, case No.-1g/895-17, p. 6. (In Georgian)
    4. See, Zorbenadze O., (2018). "Use of imprisonment to ensure the use of bail", see Journal of Law: "Justice and Law", 1'18, p. 105-110. (In Georgian)
    5. See, ibid.
    6. See the decision of the European Court of Human Rights of February 8, 2000 in the case of Caballero v. the United Kingdom (In English)
    7. Trexel Sh. (2009). Human rights in the criminal justice process, Tbilisi, p. 129 (In Georgian)
    8. See, Minutes of the Constitutional Court of Georgia No. 3/3/1341 of February 14, 2020, I-7. (In Georgian)
    9. See McBride J., Human Rights and Criminal Procedure, Case Law of the European Court of Human Rights, Strasbourg, 2011, p. 61. (In English)
    10. See, Minutes of the Constitutional Court of Georgia No. 3/3/1341 of February 14, 2020, I-8. (In Georgian)
    11. See, judgment of the Tbilisi Court of Appeal of June 29, 2017, case No.-1g/895-17, p. 4. (In Georgian)
    12. See Bokhashvili B., Mshvenieradze G., Kandashvili I. (2016). Procedural Rights of Suspects in Georgia The Procedural Rights of Suspects in Georgia, p. 22. (In Georgian)
    13. See, ibid.
    14. See the decision of the European Court of Human Rights of 28 November 1988 in the case of Brogan and Others v. the United Kingdoms, §65. (In English)
    15. See, judgment of the Tbilisi Court of Appeal of December 9, 2014, case No.-1g/1244-14, p.6. (In Georgian)
    16. See, judgment of the Tbilisi Court of Appeal of January 8, 2015, case No.-1g/19, p. 2. (In Georgian)
    17. See, ibid.
    18. See, judgment of the Tbilisi Court of Appeal of June 29, 2017, case No.-1g/895-17, p. 8. (In Georgian)
    19. See, Zorbenadze O., (2018). "Use of imprisonment to ensure the use of bail", see Journal of Law: "Justice and Law", 1'18, p. 107. (In Georgian)
    20. See, Lomsadze M. (2015). Criminal procedure, 5th revised and updated edition, Tbilisi, p. 254. (In Georgian)
    21. See, Zorbenadze O., (2018). "Use of imprisonment to ensure the use of bail", see Journal of Law: "Justice and Law", 1'18, p. 108. (In Georgian)
    22. See, ibid.
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