The commission of a crime has two principal effects on those who has committed it, one is their imprisonment, the other is their obligation to repair the harm suffered by their victim. Thus when a crime has been committed its author tends to disappear, and all the goods which he possesses with him. This is the goal of a preventive measure when it is stated in a criminal law, to avoid the flight of the guilty, to prevent the concealment of its goods.
The Spanish Criminal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim) establishes two sorts of preventive measures, in one group we have those preventive measures which affect directly to the person whom the police suspects has committed a crime, and in the other group we have those preventive measures which affect over the goods of the suspect. The former group (art. 489 to art. 544 quinquies LECrim) is formed by the detention, the provisional liberty and the provisional prison, as we can clearly see, all these measures restrict the liberty of movement of the suspect, the detention puts the suspect into the custody of the police until a judge decides if he is putted into liberty (with or without conditions) or finally jailed, the provisional liberty can be with or without bail, but in both cases the suspect must comply with its obligation of being present at the police station the days the judge has previously determined, and the provisional prison jailed the suspect until he is imprisoned in accordance with a sentence, or he is finally released because either he has been jailed the maximum period allowed in the law for the provisional prison, or he has been acquitted. The latter group (art. 589 to art. 614 bis), is the object of the present writing, and is compounded by the bail and the seizure of the goods owned by the suspect of a crime, in these cases which is harmed is the patrimony of the suspect, he doesn’t lose it, but he cannot dispose of it at his will either.
Nevertheless, both kinds of preventive measures share the requisites which should be complied, before they are agreed:
1) There should be an appearance of good right: strong evidences have to be found of a crime committed by a determined person.
2) There should be a risk to the efficacy of the criminal procedure: from the moment in which proofs have been found incriminating a person, until the existence of the sentence which determined its guilty, may happen events which will hamper the application of such sentence.
3) The fulfillment of the principle of proportionality: compounded by three other principles, the principle of suitability (if the measure can achieve its purpose), the principle of necessity (there are not other measures less harmful to the achievement of the purpose with the same efficacy), and the principle of proportionality in strict sense (from the measure has to derive more benefits to the general interest than damages to other goods or values into conflict).
And also they share the most important features:
1) Their instrumentality: they are not an end but a means.
2) Their temporary nature: when the procedure ends, the measure ends.
3) Their variability: the can be modified or abolished during the procedure.
Now has arrived the moment to talk about the bail. The bail is the principal preventive measure, because the seizure of the goods owned by the suspect only will occur when the bail has not been deposited in accordance with the judicial resolution, if it is deposited later or not deposited the judge will proceed to the seizure of the its goods. Such bail has the goal of guaranteeing the pecuniary responsibilities derived from the crime, therefore it has a broader scope than only the civil responsibilities derived from the crime (the harm suffered by the victim of the crime), for example it included the costs of the procedure or the fine imposed as part of the sentence (see art. 126 of the Spanish Criminal Law, in Spanish Código Penal). However, we have said before that a suspect may elude the provisional prison depositing a bail too, but the goal is different, it doesn’t have the finality of guaranteeing the payment of the harm suffered by the victim of a crime, it serves to bind the suspect to the trial and the execution of the punishment which could be imposed, and should be established according to the different circumstances affecting to the suspect, as his income, or his relation with the persons who may help him to deposit the bail. And yet, we have to talk of another bail to avoid misunderstandings, the bail which is demanded by the article 280 LECrim when a lawsuit is brought. Such bail, is aimed to respond of the possible costs of the procedure and is imposed on those who initiate it, which due to the exemptions of the art. 281 LECrim, mostly will be associations, avoiding groundless accusations with the only aim of harming the image of those who suffers them.
Besides this clear motive or function of the bail required to the suspect of a crime, it can serve to another task which is not explicitly stated in the LECrim. When the suspect of a crime deposites a bail demanded by a judge, he can also expressly declare that it has the purpose of mitigating the harm suffered by the victim as consequence of the crime whatever is the result of the procedure and that it has to be given immediately to such victim. In these cases will be applied the extenuating circumstance of the article 21.5 (or the art. 21.7) of the Spanish Criminal Code (in Spanish Código Penal, henceforth CP), which rewards the reparation of the harm suffered by the victim of a crime. To obtain the benefits of this extenuating circumstance, the bail has to be deposited before of the beginning of the oral trial.
Another matter which needs to be solved, is the form of the bail, in other words how this bail may be given to the tribunal. To answer this question we need to look at the article 591 LECrim. The bail may be personal, secured, mortgage, or through a guarantee which may be constituted in cash, through a guarantee jointly and severally liable of indefinite duration and payable to the first requirement emitted by a entity of credit or a society of reciprocal guarantee, or through whatever means, which to the judgment of the judge or tribunal guarantees the availability, in its case, of the due amount.
Thus, the bail as a preventive measure in a criminal procedure has the aim of avoiding the concealment of the goods owned by the suspect of a crime (although it may be considered a extenuating circumstance), and may be adopted by a judge as soon as the investigation carried out by the judicial police provides strong evidences of a crime committed by a concrete person. As all the preventives measures it can be modulated along the procedure, which means that can be increased, reduced, or even eliminated. And the law gives multiple possibilities regarding the form of its deposit, so it will never be an excuse to not pay it.