Bail Bonds -Nioga.net http://nioga.net Mon, 13 May 2019 08:16:11 +0000 en-US hourly 1 https://wordpress.org/?v=5.0.4 A 1 Bail Bonds Honolulu Hi -Deposit By Bail Bond Company http://nioga.net/2019/05/13/a-1-bail-bonds-honolulu-hi-deposit-by-bail-bond-company/ http://nioga.net/2019/05/13/a-1-bail-bonds-honolulu-hi-deposit-by-bail-bond-company/#respond Mon, 13 May 2019 08:08:00 +0000 http://nioga.net/2019/05/13/a-1-bail-bonds-honolulu-hi-deposit-by-bail-bond-company/ Bail is the constitutional right of every person arrested for the alleged commission of a crime to remain at liberty until a trial is held and a judgment is issued, by payment of a sum of money or by guaranteeing such payment with a property or by mediation of a bail bond company or subject […]

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Bail is the constitutional right of every person arrested for the alleged commission of a crime to remain at liberty until a trial is held and a judgment is issued, by payment of a sum of money or by guaranteeing such payment with a property or by mediation of a bail bond company or subject to the conditions imposed by the Services Office before the Trial. See the Office of Services section before the Trial. This right exists because in our system of justice it is presumed that every person is innocent until proven otherwise. Its sole purpose is to ensure that a person arrested for the alleged commission of crime appears to the Court each time he is summoned. It can not be used to punish anyone who has not been proven to have committed a crime.

According to the Law of Puerto Rico, as a general rule, bail only applies when the crime is imputed is serious. Except in certain cases, when the crime is less serious, only the person is summoned to appear before the Court on a certain date.

Deposit by bail bond company

bail bond company

In this case, the contract is contracted with a company authorized to lend bonds in Puerto Rico to which the premium is paid, Generally 10% of the amount of the bond. This company is responsible for processing all the documents related to the bond with the Court. The courts regularly receive information about the companies that are authorized to lend bonds in Puerto Rico. We will explain at our Homepage a little more about bail bonds.

 

It should be noted that the premium paid to these companies is not subject to reimbursement, as is the case with the cash bond if the person appears at trial whenever it is cited; Said premium is the payment for the service that the company provides.

Fixation

 

Fixation

As soon as a person is arrested and brought before the Court for an alleged violation of the law of a serious nature or, in certain special cases of less serious nature, if probable cause is determined to believe that the person has actually committed You must post bail. The amount of this depends on a series of circumstances that the Court must consider. Determined the existence of probable cause and the bail set, the person is immediately in the custody of the bailiffs of the system, ready to be imprisoned if not bail.

Terms

Terms

In addition to the bail, or in substitution of it, the Court may impose on the person of the series That conditions must be met. The conditions depend on each particular case. If the person does not meet the conditions, the Court can order his arrest. If bail had not been set, only conditions, the Court would impose bail to ensure his appearance.

Provision of the deposit

Provision of the deposit

Once the bail is set, the person charged must pay it immediately if it is in the Court, or as soon as they take it to the Court. If you are not prepared to provide it, you can call a family member, a lawyer, a bail bond company or someone you trust to help with the procedures. If you have been taken to a criminal institution in compliance with the order of release issued by the Court, you must indicate to the person with whom you are requesting a document called “crime ticket and bond” in said institution. With this document, the person goes to the corresponding Court Registry and provides the bond so that the Court can order the release of the accused person.

In these cases, the Office may also intervene in advance of the trial, if certain conditions are met (see section Office Services before the Trial) or it may happen that the Court is provisionally released under other circumstances Probation without bail.).

Ways to provide bail

Ways to provide bail

The deposit may be provided in different ways, namely:

In cash: The person himself, or any other person wishing to help him, can deposit in the Secretary of the Court the total amount of the deposit. The person receiving a receipt in this regard. After the judicial process, the person who lent the bond may be returned. See the section Return of deposit.

Payment in cash of% plus a personal obligation for the part not paid: The Court may impose a bond that requires the immediate payment of only a part or percentage (%) of the total. In that case, the amount required must be deposited immediately in the Secretariat and a person, who is not accused, must sign a document before the Court in which he agrees to pay the rest of the bail set if the person The defendant does not appear before the Court on the date for which he is summoned.

Mortgage bond: It is the bond that is offered in the guarantee of the payment some property whose value discounted the encumbrances is sufficient to cover the amount of the bond. In this case, if the accused person, or any other person who wishes to help you, have one or more properties whose value is greater than the amount of the bond, you can offer it as a guarantee of the payment of the same. To do so, it is required, as indicated, that the properties be free of encumbrances that may affect the collection of the deposit by the State.

Requirements:

  1. Bring the deed of the property REGISTERED and CERTIFIED by the Land Registry.
  2. Submit a Registration Certification on the property. It is obtained in the Property Registry. Normally they are accepted dated up to 30 days before the dance is given. To make sure of this, it is preferable to consult with the judge or the judge on duty in the Court.
  3. The owners or owners of the property must appear. These should be the photo identification, the residential address, the social security number, the telephone number and any other general information that the judge requires.
  4. A recent Appraisal of the value of the property must be submitted. Normally the dates are accepted up to 6 months before the dance is released. To make sure of this, it is preferable to consult with the judge in charge at the Court.
  5. A certificate issued by the Municipal Tax Compliance Center (CRIM) must be presented in relation to the tax status and property debts.
  6. If the registration certification arises to lien and the owner proposes to claim that it was canceled, or that it is reduced must present proof of this issued by the creditor.
  7. You must present the document known as a crime ticket and issued by the criminal institution in which the accused or defendant is held. If the Court ordered a bail reduction, the resolution issued by said Court must be presented.

Note: The accepted value of the property will be deducted from the outstanding liens and debts, as well as $ 1,500 for a safe home. The surplus will be available for the deposit.

Mortgage bond for more than one guarantor

Mortgage bond for more than one guarantor

Rule 220 of the Rules of Criminal Procedure provides that if the judge allows it, more than one guarantor may provide this type of bond, separately competing for lower amounts provided that the total of individual obligations is equal to twice the amount of the bond that was imposed in the case or the one fixed by means of reduction of the original bond.

Office of Services before the Trial

Office of Services before the Trial

This is a state agency that operates in some judicial centers, although the service is being extended to cover them all. If the person accused of the offense voluntarily submits to the service provided by the said office and complies with the conditions imposed on him, said the office is responsible for the proceedings before the Court to obtain the provisional release of the latter until the sentence is pronounced. However, persons who have been charged with the commission of certain crimes are not eligible for this service. For this, the Office of Services before the Trial makes a study of each particular case it attends.

If the person accused of a crime complies with the requirements and accepts the conditions determined by the Office, the Court may order that he shall be released provisionally without having provided the bail set.

Some of the options that can be given in this case are:

  • Freedom in the custody of a third party: A third person who deserves the confidence in the Court undertakes to supervise the accused and inform the court of any breach of conditions by the accused.
  • Freedom under own recognition: The accused person is allowed to deserve the confidence of the Court to remain at liberty under the written promise that he will appear at the Court whenever he is summoned. The Court can not impose conditions on it.
  • Freedom on deferred bail: Bail is set for the person charged, but he is allowed to be released without having been subject to certain conditions ordered by the Court. If you violate any condition, you are then required to post bail.

Bail discounts

If a person considers that the bond that has been imposed on him is high, he can obtain the services of a lawyer or a lawyer and ask the Court to lower it. If you do not have money to hire legal representation, you can ask the Society for Legal Assistance for help.

When the rebate is requested, the Court must hold a hearing within 24 hours. In those cases, after examining the justifications and taking into account the opinion of the Public Prosecutor, the Court makes its decision. The imputed person must provide the bail set according to the normal bail procedure. As long as he does not, he will remain imprisoned preventively.

Increase in bail

In the same way that the accused person may request a reduction, the Public Prosecutor may also request an increase if he considers the circumstances of the case justify it. Likewise, it may request that the Court impose additional conditions to the bond or that it extends the conditions already imposed.

Confiscation of bail

If the person accused does not appear before the Court on any date for which he or she was summoned, the bond is confiscated.

If this is in cash, the person who loaned it loses the money. If only part of the bond was paid and a third person assumed the obligation to pay the remainder of the accused did not appear before the Court, the State confiscated the part that was paid in cash and proceeds legally against the person who pledged the rest.

If the mortgage bond was provided, the Department of Justice’s Division of Securities will be responsible for taking the case to recover the amount secured with the property.

If the bond was lent by an insurance company, it would be responsible for paying the State. The person who contracted with the company already paid the premium (10%) that corresponded to him.
A person who has trusted and has the suspicion that the latter is not going to appear at the Court can take the trusted person to the Court and request him to cancel the bond he lent. In that case, the Court will take the measures it deems necessary to guarantee once again that the accused person appears in his day.

Refund of the deposit

Refund of the deposit

If the accused person appears before the court until judgment is given, then the bond loses its purpose and the guarantor may request the return of the same. For this, the guarantor will be required to appear before the Court and present the receipt that was issued at the time of posting the bond.

Security deposit in cash

Security deposit in cash

If the bond was lent in cash, the Judge or Judge will authorize the return of the deposit, regardless of whether the person has been declared innocent or guilty. To do this, you must fill out the form that is obtained in the Court itself (Form OAT 771) and accompany it with the deposit. Motions to request the return of the deposit must be submitted to the Clerk of the Court. The same happens if only part of the deposit is paid.

Mortgage bond

Mortgage bond

Once the Court issues a judgment, whether of acquittal or of guilty, the guarantor must request a copy of the judgment and request from the corresponding Office of the Prosecutor to begin the procedure to eliminate the lien registered in the Property Registry.

Deposit by company bail

Deposit by company bail

The company itself is Responsible for any queue management needs to be done. The trusted person does not have to perform any management.

Payment of ends with bail

Payment of ends with bail

If the bond was lent in cash by the accused person himself, of being convicted, the Court may order that the amount of any fine imposed on the case be withheld from the bond and that the surplus is returned to him.

Appeal bail

Appeal bail

If the accused is convicted and wishes to appeal the judgment before the Circuit Court of Appeals or the Supreme Court, he may request from the Court that he has issued the conviction that establishes bail for purposes of appeal. In this case, however, bail is not a constitutional right, since the presumption of innocence no longer operates. The Court has the discretion to set a bond or not to do so.

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CONTRACTUAL GUARANTEES http://nioga.net/2019/05/08/contractual-guarantees/ http://nioga.net/2019/05/08/contractual-guarantees/#respond Wed, 08 May 2019 07:58:11 +0000 http://nioga.net/?p=674 To participate in a public tender or to perform a contract, you must be able to prove to your counterparty that you are financially sound and reliable. We can issue the required guarantee and if you do not meet your contractual obligations, we will pay the beneficiary a maximum of the predetermined amount of the […]

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To participate in a public tender or to perform a contract, you must be able to prove to your counterparty that you are financially sound and reliable. We can issue the required guarantee and if you do not meet your contractual obligations, we will pay the beneficiary a maximum of the predetermined amount of the guarantee.

Benefits of this product

Benefits of this product
  • Increase your project opportunities both nationally and internationally
  • The bail is proof of your financial health
  • Your own funds remain available and your credit facilities at the bank unaffected
  • Reduction of the collateral provided to the bank
  • The beneficiary has the assurance that the project will be completed

Most important features

Most important features
  • Who? For all companies based in the European Union that require one or more contractual guarantees or guarantees
  • What? A guarantee under which one or more contractual guarantees can be issued in favor of one or more counterparties
  • The guarantee or guarantee ensures that the contractual obligations with regard to a contractual counterparty are met
  • In the event of contractual default or insolvency, the counterparty may claim compensation up to a maximum of the predetermined amount
  • Duration of the guarantees? Up to five years

Companies often have to deal with a contractual counterparty who requests a bail or a guarantee. This guarantee, which is issued by a third party, will guarantee that the company will correctly and timely fulfill its contractual obligations towards the counterparty (the beneficiary). If this is not the case, the beneficiary can claim compensation up to a maximum of the predetermined amount of the guarantee.

Such a bail is usually required to secure the construction or maintenance of a building, the delivery of machines or services, international transactions, etc.

We mainly offer the following contractual guarantees, but others are also negotiable:

  • registration guarantees (bid bonds);
  • advance payment guarantees;
  • performance guarantees (performance bonds);
  • retention money bonds;
  • warranty bonds;
  • public procurement guarantees;
  • supplier guarantees;
  • letters of intent.

Thanks to our contractual guarantees, you can step into several projects, expand your international activities and prove to your counterparties that you are a reliable and financially sound party, without endangering your liquidity.

Why Credito?

Why us?
  • We are flexible and quick in issuing your guarantees and guarantees
  • We place great value on our relationships with customers and try to build a sustainable partnership.
  • We have expertise and insight into the most important markets and activities where guarantees are required.

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Judicial Security http://nioga.net/2019/05/03/judicial-security/ http://nioga.net/2019/05/03/judicial-security/#respond Fri, 03 May 2019 07:56:48 +0000 http://nioga.net/?p=671 Operation of the judicial bond for financial crime The operation of the judicial bail for financial crime revolves around the allocation of funds, their deposit and their possible recovery. The legal guarantee is part of the judicial review measures. As such, it aims to reconcile individual freedoms and protection of society by forcing the accused […]

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Operation of the judicial bond for financial crime
Operation of the judicial bond for financial crime

The operation of the judicial bail for financial crime revolves around the allocation of funds, their deposit and their possible recovery.

The legal guarantee is part of the judicial review measures. As such, it aims to reconcile individual freedoms and protection of society by forcing the accused to respect certain rules. Criminal bail then makes it possible to ensure that the accused will appear in court at each stage of the proceedings, this is called representativeness. Part of the deposit is then assigned. The second part of the deposit is allocated to the payment of the fines as well as the damages and interests if it is necessary. This part is kept pending the judgment and can then be used to pay fines or damages.

To fulfill its objectives, the surety is registered during the entire judicial review, until a judgment is rendered.

The portion of the bond allocated to representativeness will be vested in the State if the person is sentenced and has not satisfied all the obligations of the judicial review, the trial or the execution of the judgment. In the event of conviction, the second part of the bond will be used to pay the fine or damages. It may be used in particular to repair the damage caused by the accused or to pay a debt.

The recovery of the deposit is possible in some cases. In the first place, the party assigned to representativeness can be recovered, even in the event of conviction. The respondent can then recover it if he has satisfied all his obligations of judicial review, of trial and that he has submitted to the execution of the judgment. However, it happens that despite the respect of these conditions this part of the deposit is kept to complete the second part of the deposit being insufficient.

This first part of the bond is always recovered if the accused is not convicted, even if he did not respect the obligations of the judicial review.

In the case where the defendant is not convicted, he also recovers the second part of the deposit. This second part may be partially recovered when the defendant is convicted but the full amount is not required for the payment of fines or damages

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Security deposit: the right of the tenant to interest http://nioga.net/2019/05/01/security-deposit-the-right-of-the-tenant-to-interest/ http://nioga.net/2019/05/01/security-deposit-the-right-of-the-tenant-to-interest/#respond Wed, 01 May 2019 07:55:20 +0000 http://nioga.net/?p=668 Security deposit for the tenant’s right to interest The tenant is entitled to interest on the security deposit at the end of the lease, but what effect does the current rate have on the deposit paid by the tenant? When renting, it is good practice to pay the owner the so-called security deposit, to stop […]

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Security deposit for the tenant’s right to interest The tenant is entitled to interest on the security deposit at the end of the lease, but what effect does the current rate have on the deposit paid by the tenant?

When renting, it is good practice to pay the owner the so-called security deposit, to stop the building. However, when he leaves the property and hands the keys to the owner, the tenant is entitled to a refund of the deposit with the related interest. But what interests today, with rates at historic lows? What effect does the rate of 0.2% have on the security of the person who takes the house for rent?

A legitimate doubt, but remember that for the security deposit there is the legal interest rate, which serves to quantify the value of the time during which the tenant has left the deposit in the hands of the owner. Of course, with interest rates at historic lows, which is only 0.2%, doubts take over. What does this mean for those who rent?

Insights

Insights

The interest due to the tenant on the security deposit, at the end of the lease, is calculated based on the number of days in which the deposit was withheld by the owner. The calculation is based on the legal interest rate defined by Decree of the Ministry of Finance.

The latest rate, recently defined by the Ministerial Decree of 11 December 2015, published in the Official Journal no. 291 of 15/12/2015, came into force from 1 January 2016 and marks a historical record: it is the lowest in the history of our country, 0.2%. A record that alarms the many tenants who have a rental contract and have paid the security deposit on signing the contract with the landlord.

Clarifications

Clarifications

From the Research Office Only Rentals, a real estate network specialized in renting, some clarifications on the subject. First of all, it must be ensured that the security deposit is interest-bearing, that is, it produces legal interests.
For housing rents a security deposit is often requested that does not produce legal interest if free contracts are used, while for contracts with agreed rents the payment of interest is mandatory, as is the maximum amount to be paid as a deposit which it cannot exceed 3 monthly installments of the fee.
For leases with different uses, the down payment requested is rather fruitful, so at the end of each year the landlord must pay interest to the tenant, or pay them at the end of the lease period in a single payment.

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Prison bail: bail and restitution http://nioga.net/2019/04/29/prison-bail-bail-and-restitution/ http://nioga.net/2019/04/29/prison-bail-bail-and-restitution/#respond Mon, 29 Apr 2019 08:00:55 +0000 http://nioga.net/?p=683 Penal Bond: In Case of Judicial Review When a person under investigation risks at least a prison sentence, the investigating judge or the judge of liberty and detention (JLD) can place this person under judicial control (Article 138 of the Code of Criminal Procedure). Good to know : from 1 January 2017, the judicial control […]

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Penal Bond: In Case of Judicial Review
Penal Bond: In Case of Judicial Review

When a person under investigation risks at least a prison sentence, the investigating judge or the judge of liberty and detention (JLD) can place this person under judicial control (Article 138 of the Code of Criminal Procedure).

Good to know : from 1 January 2017, the judicial control must be ordered by the JLD or by the college of the instruction.

The judicial review may include the obligation to pay a bond. It is a sum of money that can be paid in several times.

The decision ordering the payment of the security must specify the amount and the time of payment. Amount and time of payment must take into account the resources and expenses of the Charged Person. These resources and expenses must be mentioned by the decision ordering the bond.

Bail to get out of prison: restitution

Bail to get out of prison: restitution

The first part of the criminal guarantee must be returned to the Charged Person if that person has attended all the proceedings, satisfied the obligations of the Judicial Review, and submitted to the execution of the judgment.

If this is not the case, the first part of the penal guarantee becomes the property of the State, or is used to pay the claim secured by the bond. Unless there is a legitimate excuse for the Charged Person, dismissal, or discharge, or acquittal, or exemption from sentence.

With regard to the second part of the criminal guarantee, if it is not paid to the victim of the offense or the creditor of a maintenance debt, it is returned to the Charged Person when the latter benefits from a non-compliance. place of absolution or acquittal.

Good to know : if the Charged Person is sentenced, the second part of the criminal bond is used for restitution, to repair the damage, as well as to pay the debts and the fines. If there is money left after these payments, this surplus is returned to the convicted person when the sentence is final.

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Guarantor, Peculiarity of the American Judicial System http://nioga.net/2019/04/19/guarantor-peculiarity-of-the-american-judicial-system/ http://nioga.net/2019/04/19/guarantor-peculiarity-of-the-american-judicial-system/#respond Fri, 19 Apr 2019 08:02:36 +0000 http://nioga.net/?p=687 Stanley Zhen was able to regain freedom in return for a deposit of one million dollars. Defralo returns to this practice frequently used across the Atlantic. What is a deposit and a deposit? The payment of a deposit, fixed at one million dollars for DSK, makes it possible to ensure that the accused, although free of his […]

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Stanley Zhen was able to regain freedom in return for a deposit of one million dollars. Defralo returns to this practice frequently used across the Atlantic.

What is a deposit and a deposit?

What is a deposit and a deposit?

The payment of a deposit, fixed at one million dollars for DSK, makes it possible to ensure that the accused, although free of his movements, will appear at all the hearings to which he is summoned. If he misses this obligation, he loses the total amount of the deposit. On the other hand, if he respects it, the deposit is automatically returned to him, whether he is found guilty or not.

In the case of Stanley Zhen, this bond is accompanied by a security deposit of $ 5 million that the defendant must pay to justice if he does not respect all the conditions surrounding his release under house arrest, wearing a bracelet, monitoring his apartment by a guard at his expense, etc…

How is it fixed?

How is it fixed?

The 8th Amendment to the US Constitution requires “not to require excessive bail”. The amount of the deposit is fixed by a judge at the first hearing. The magistrate takes into account the nature and circumstances of the crime being tried, the case against the accused, his social and family environment, his employment, his family resources, his personality and his criminal record. In the case of Stanley Zhen, he himself offered a deposit of one million dollars.

Is bail frequent in the United States?

Is bail frequent in the United States?

“This is almost the rule, says Jean-Eric Branaa, lecturer at Paris 2 University, specialist in American law. There are two reasons for this: the first is economic because American prisons are full. The second is philosophical, based on the presumption of innocence: we will always prefer to leave an innocent person in freedom rather than in prison.

How do you pay for it?

How do you pay for it?

Defendants can rarely dispose of the required amount in cash in a short time. That is why they can call on bail guarantors, called “bondsmen” in English, whose job is close to that of an insurance agent.

The guarantor asks the accused to pay 6 to 20% of the sum, that the defendant will not recover it is on this commission that the guarantor is remunerated. The accused must also provide the bondsman with a security deposit, such as 40% of the cash deposit, or a property with a value at least equal to the total amount due.

In return, the guarantor submits to the court a contract by which he agrees to pay the surety in the event that the defendant does not appear at the hearings. These contracts are mostly financed by insurance companies capable of rapidly making the capital available.

The bondman trade only exists in the United States and the Philippines. Most states require that the bondmen have a professional license. Four (Illinois, Kentucky, Oregon and Wisconsin) prohibit it completely.

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Bailout http://nioga.net/2019/04/15/bailout/ http://nioga.net/2019/04/15/bailout/#respond Mon, 15 Apr 2019 07:58:41 +0000 http://nioga.net/?p=677 If the principal cannot pay the original debtor, “Give him extermination, come to me, if you can not get it,” he said “bail allegiance”, “the actual debtor without giving the execution can come to me, I’ll be ready to pay,” he is called the “bail” of the bail. If a bail is not a clear […]

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If the principal cannot pay the original debtor, “Give him extermination, come to me, if you can not get it,” he said “bail allegiance”, “the actual debtor without giving the execution can come to me, I’ll be ready to pay,” he is called the “bail” of the bail.

If a bail is not a clear guarantee, Because the lawkeeper protects.

The reason for the protection is clear: bail is generally an institution that is beneficial to the original debtor and the creditor, but that destroys the guarantor. Because usually a price is required for the sake of the original debtor.

It is normal for people who are economically close to each other to be guarantors. But the friendship is different for the sake of the grace of the situation is different.

The most serious problem arises in the bail of the company debt.

The most serious problem arises in the bail of the company debt.

In the companies that are not institutionalized, the company’s major partner / partners and managers are generally vouched for by the company. Thus, the rule of gel the company is the only company with the law and the capital is responsible for its own capital / assets iyor and the partners become responsible for certain debts.

In practice, especially in bank loans, large partners and even all partners sign the loan agreements – as joint guarantor.

In this way, banks secure themselves against the possibility that the partners and executives will empty the company and not pay the loan. All right, here.

But in practice there is often another problem.

But in practice there is often another problem.

Banks want to use the signature of the guarantor as a bail signature for all loans that the debtor has received and will receive from the bank. They write the contracts accordingly and keep the accounts accordingly.

However, the guarantors, most of the time, due to a certain amount of credit debt as a guarantor and the debtor in the end of this loan debt, they assume that their own bail will be deemed to be finished, they assume.

When the debtor cannot pay the debt of the real or legal person, the banks give all the guarantors in all the loan contracts of this borrower and try to get them in a way that they will get it by squeezing them all together.

Even though the guarantors say that anlat I am not responsible for this loan, the loan I have been granted has been repaid K, it is very late until they tell the court their troubles. Bank somehow received the right-wrong way, or at least foreclosed. But the controversy between the debtor and his guarantor is transformed into an economic blood cause and a lifelong problem bundle.

Remedy: It is necessary to re-write the regulations that regulate the boundaries of bail. In addition, to keep the banks in line with this issue is necessary to audit.

For this, the main task before the Banks Association of Turkey and Turkey Participation Banks are falling Union.

But we know that we are afraid that the Unions will keep the interests of their members in this respect as in almost every issue. Then the main task falls to the Banking Regulation and Supervision Agency and its Board. Or the Grand National Assembly of Turkey.. If indeed exists and works!

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Judicial review: payment of a criminal guarantee and prohibition of the professional activity of the indicated http://nioga.net/2019/03/05/judicial-review-payment-of-a-criminal-guarantee-and-prohibition-of-the-professional-activity-of-the-indicated/ http://nioga.net/2019/03/05/judicial-review-payment-of-a-criminal-guarantee-and-prohibition-of-the-professional-activity-of-the-indicated/#respond Tue, 05 Mar 2019 08:00:30 +0000 http://nioga.net/?p=680 On 17 September 2014, the Court of Cassation ruled that the amount and time for the payment of bail in the context of legal proceedings must be determined according to the resources and charges of the Charged Person. Similarly, the investigating judge who wishes to order a professional prohibition must not only find that the […]

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On 17 September 2014, the Court of Cassation ruled that the amount and time for the payment of bail in the context of legal proceedings must be determined according to the resources and charges of the Charged Person.

Similarly, the investigating judge who wishes to order a professional prohibition must not only find that the offense was committed in the exercise or on the occasion of the exercise of this activity by the person prosecuted but also prove the existence of a risk of commission of a new criminal offense.

For the record, Article 137 of the Code of Criminal Procedure provides:

“Everyone charged with an offense, presumed innocent, remains free.

However, because of the requirements of the direction or as a security measure, it may be subject to one or more obligations of the judicial review or, if they prove to be insufficient, to be assigned to residency with electronic surveillance.

Exceptionally, if the obligations of judicial review or house arrest with electronic surveillance do not achieve these objectives, it may be placed in pretrial detention. “

Judicial review is a criminal procedural measure that allows a person to be subject to one or more obligations until they appear before the criminal court to be tried.

Judicial review can only be ordered under two cumulative conditions, namely:

Judicial review can only be ordered under two cumulative conditions, namely:
  • it must be necessary for the investigation or to be pronounced as a security measure,
  • the person must incur at least one sentence of correctional imprisonment.

In the context of judicial review, the investigating judge, the liberty and detention judge or the court may submit to the Charged Person one or more of the obligations listed in Article 138 of the Code of Criminal Procedure, namely:

  • a prohibition to leave certain territorial limits fixed by the judge,
  • a prohibition to be absent from home,
  • an obligation to leave the matrimonial home with regard to conjugal violence,
  • a prohibition to go to certain places fixed by the judge,
  • an obligation to inform the judge of all his movements,
  • an obligation to surrender his passport,
  • an obligation to report periodically to the police station or the gendarmerie brigade,
  • a prohibition to meet certain persons determined by the judge,
  • an obligation to submit to a socioeducational followup (professional activity or training),
  • an obligation to submit to examination, treatment or care measures even under the hospitalization regime, in particular for the purpose of detoxification or psychological or psychiatric followup,
  • an obligation to receive medical, social or psychological treatment for domestic violence.
  • an obligation to provide a bond or to constitute personal or real security (mortgages, suretyship, pledge, etc.),
  • an obligation to justify a contribution to family expenses.
  • Various prohibition:
  • a ban on driving a vehicle,
  • a prohibition to engage in certain professional or social activities (where the offense was committed within their framework and a renewal is to be feared),
  • a prohibition to hold a weapon,
  • a ban on issuing checks.

At any time during the investigation, the investigating judge, the liberty and detention judge or the court may:

At any time during the investigation, the investigating judge, the liberty and detention judge or the court may:
  • impose on the person under judicial supervision one or more new obligations,
  • remove all or part of the obligations,
  • modify one or more of these obligations,
  • grant an occasional or temporary waiver to observe some of them.

Of these judicial review obligations, some can be imposed on the Charged Person only under certain conditions.

This is the case, in particular, of the guarantee and the prohibition to engage in certain professional or social activities.

As regards, first of all, the penal guarantee, article 138, paragraph 2, 11 ° of the Code of Criminal Procedure provides that:

“The amount and the timelimits for payment, in one or more installments, are fixed by the investigating judge or the judge of liberties and detention, taking into account in particular the resources and the charges of the Charged Person “

In this case, a person indicted for passive bribery had been placed under judicial control.

The order for placement under judicial supervision imposed the obligation to pay a deposit of € 30,000 and the prohibition to engage in activities related to urban planning operations.

To uphold the judicial review order, the Court of Appeal held that ” the principle of a bond was consistent with the facts alleged against the person concerned and that the amount of the security must be determined taking into account the its contributory powers “and, as regards the prohibition of the exercise of professional activity, it considered that it was” in keeping with the facts alleged against the person concerned “.

The Charged Person then filed an appeal on points of law, arguing:

The Charged Person then filed an appeal on points of law, arguing:
  • First, that the obligation to pay a bond was not justified since it provided for the maintenance of two minor children, reimbursed a mortgage, and had no liquid savings. In addition, it proposed to constitute a security interest (mortgage) on the real estate property it owned;
  • And, on the other hand, that the prohibition of engaging in a professional activity was not justified because of the absence of any current risk of committing a new offense.

The Court of Cassation entitled the Charged Person by considering:

On the one hand, that:

“The amount and time for the payment of the security, which may be attached to the judicial review of the Charged Person, must be determined taking into account, among other things, the resources and expenses of the Charged Person”

And on the other hand :

“The investigating court, which prohibits the Charged Person from engaging in certain activities of a professional or social nature, shall find that the offense was committed in the course or on the occasion of the exercise of such activities and that there is a risk of committing a new offense “.

According to the Court of Cassation, the decision ordering the payment of a bond, in the context of a placement under judicial supervision, must expressly refer to the resources and the charges of the Charged Person.

This condition is recalled in several decisions of the Court of Cassation.

Thus, it has been held that the judgment of a Indictment Division which imposes on a Charged Person the payment of a sum in respect of the suretyship without making any reference to its resources shall be subject to cassation. ( Cass Crim, December 7, 1994, No. 9484.669 )

Similarly, the judgment fixing the amount of a security without explaining the resources and the costs of the accused ignores Article 138, paragraph 2, 11 ° of the Code of Criminal Procedure. ( Cass Crim 4 November 2008, No. 0885.724 )

Given the fact that the judges of the Court of Appeal had failed to justify their pronouncement with regard to the requirements of article 138, paragraph 2, 11 ° of the Code of Criminal Procedure, their decision could not avoid censorship.

Concerning the prohibition to engage in certain activities, Article 138, paragraph 2, 12 ° of the Code of Criminal Procedure lays down two cumulative conditions, namely that:

  • the offense was committed in the course or on the occasion of these activities,
  • the existence of a risk of committing a new offense.

The Court of Cassation has already had the opportunity to censor a decision prohibiting the exercise of its activity of judicial representative, on the grounds that the offenses charged were not committed during the exercise of this activity and the current risk of committing a new offense has not been sufficiently characterized. ( Cass Crim 5 March 2003, No. 0288,089 )

Similarly, the case law requires investigating judges to ascertain and characterize the current risk of commission of a new criminal offense justifying the maintenance of a professional prohibition against a Charged Person. ( Cass, Crim 13 October 1998, n ° 9884.224 )

However, the investigating court had failed to rule in practice on the risk of committing a new offense.

In conclusion, it should be kept in mind that the Charged Person may request the investigating judge:

  • to carry out any act which appears necessary to the manifestation of the truth: hearing of a witness or of another party, transport on the spot;
  • that these acts are carried out in the presence of his lawyer;
  • the cancellation of the indictment within 6 months of the first appearance if an irregularity has been committed;
  • to reconsider his decision and to give him the status of assisted witness if the conditions required by the indictment are no longer met (Article 8011 of the Code of Criminal Procedure).

The post Judicial review: payment of a criminal guarantee and prohibition of the professional activity of the indicated appeared first on Bail Bonds -Nioga.net.

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