Criminal law provides for property surety, commonly known as bail, as a means of securing the proper course of criminal proceedings, e.g. ensuring the participation of the defendant in the trial, by means of property deposited by the defendant or another person under the threat of forfeiture if the defendant flees or hides or otherwise obstructs the proceedings. Surety (bail) is often used as an alternative to pre-trial detention because both measures serve the same purpose - to ensure the proper course of the proceedings. By posting bail the surety guarantees that the defendant (suspect) will not evade or obstruct the proceedings. If the defendant himself provides bail, the amount of the bail is in fact a guarantee that he will abide by the rules of procedure.
Property surety is used by the court, and also by the prosecutor in pre-trial proceedings. Importantly, the surety does not necessarily have to be in the form of money.
The legal basis for the use of surety is art. 266 of the Code of Criminal Procedure, according to which
§ 1. A surety in the form of money, securities, a pledge or a mortgage may be provided by the defendant or another person.
§ 1a. The object of the financial surety may not come from a contribution to the benefit of the defendant or another person providing surety made for this purpose. The court or prosecutor may condition the acceptance of the surety item on the person posting it demonstrating the source of the item.
§ 2. The amount, type and conditions of the surety, and in particular the time limit for posting the surety item, shall be specified in the order, taking into account the financial situation of the defendant and the person posting the surety, the amount of damage caused and the nature of the offence committed.
The object of the surety may be money (Polish or foreign), but it may also be securities (e.g. shares, bonds, bank securities), a pledge, or a mortgage. A surety can be executed by depositing money or securities, or by creating a pledge or mortgage, as well as by declaring a surety in the above forms at a certain time.
The amendment of 2021 introduced a limitation in the scope of the subject of the surety and the sources of its origin in such a way that the subject of the surety cannot come from a donation to the accused or another person posting the surety, made for this very purpose (i.e. for the purpose of posting the surety). The source of the subject of the bail must therefore be funds coming directly from the person posting the bail. This excludes collections made for this purpose, as well as voluntary contributions made by individuals outside of collections. The court or prosecutor may even make acceptance of the surety subject to proving the source of the bail by the person posting the surety.
The justification of the bill reads, among other things, that the application of a preventive measure in the form of a financial surety presupposes financial liability of the person posting the surety. In the case of bail deriving from donations made to the defendant or other person posting bail for this purpose, the link between liability and the risk of loss of funds is broken, as the defendant or the person posting bail does not risk losing his or her own funds, but funds which he or she has obtained as a result of donations from third parties ( explanatory memorandum to the bill No. 867A). Importantly, in view of the fact that the press authority may condition the acceptance of the bail object on the demonstration of the source of its origin, if this obligation is not fulfilled, the bail will be refused. The same applies if the prosecutor or the court finds that the funds originate from, for example, a fundraiser organised among friends or associates of the accused. The authority will then have the power to refuse to accept the surety.
There are no rules that set the amount of the surety solely according to the type of crime charged. The amount, type, and conditions of the surety, including the deadline for posting the surety item, shall be determined by the prosecutor or court in a decision, taking into account the financial situation of the defendant and the person posting the surety, the amount of damage caused, and the nature of the offence committed.
The property surety can be provided by both the accused and any other person. There are no restrictions in this regard. This person can be either the person closest to the accused, or someone who does not have such status, a Polish citizen, a foreigner, or a co-accused. As a rule, the other person can only be a natural person (there are disputes as to whether legal persons can be sureties). The surety can therefore come from anyone who chooses to do so, trusting the accused not to violate the terms of the surety bond.
Cases when bail is returnable and when it may be ordered to be forfeited or collected.
If the accused flees or goes into hiding, the property surety will not be returned (forfeiture or recovery of the full value of the property surety is mandatory). On the other hand, if the criminal proceedings are hindered in any other way, forfeiture of the surety or recovery of the surety's assets may be ordered optionally. On the other hand, partial forfeiture of the surety (or recovery of its sums) may be ordered if, at the same time, an additional non-custodial preventive measure is taken against the defendant, taking into account the need to safeguard the proper course of the trial. The forfeiture of the surety's property or the recovery of the surety sum shall always be ordered by the court, either ex officio if proceedings are pending before it or at the request of the public prosecutor. The defendant, the surety and the public prosecutor are entitled to attend the court session or give written explanations.
On the other hand, the object of the surety shall be returned as a result of its termination or effective revocation. The surety bond shall cease to exist at the commencement of the execution of the sentence, unless otherwise specified in the decision on acceptance of surety, and if the trial has been finally ended in a manner which does not provide for the execution of the sentence (acquittal, conditional discontinuance, conviction with conditional suspension of execution of sentence, waiver of punishment). In such a situation, the surety ceases to exist the moment the sentence becomes final.
In the case of an unconditionally executed sentence of imprisonment, the surety only ceases when the prisoner starts serving their sentence, i.e. when they turn up to serve it. If the convicted person fails to report for serving his sentence, the surety is forfeited. According to the resolution of the Supreme Court dated 22 January 2003, I KZP 36/02, in the event that the defendant, against whom a property surety has already been imposed, is remanded in custody without a note being included in the decision imposing this measure about the revocation of the surety or its substitution with pre-trial detention, the property surety ceases to exist at the moment when the pre-trial detention begins, i.e. the moment the defendant is incarcerated, and not at the moment when the decision imposing this preventive measure becomes final or binding.
The object of the surety may also be returned if the surety is revoked. The revocation of surety may take place only up to the moment when the forfeiture of the surety has not yet been ordered, i.e. up to the moment the decision on the forfeiture of the surety's assets has been issued (recovery of the surety's sums). The revocation itself, on the other hand, takes effect only upon the acceptance of a new bail or the imposition of another preventative measure or waiver of such a measure.