What is Bail?

For the unacquainted, learning that a Criminal Case and Criminal Information have been filed against yourself, a loved one, or a client, is a harrowing and challenging experience, particularly when a warrant of arrest will or had already been issued.

We find comfort and solace, however, in the constitutionally granted right of an accused to be presumed innocent until proven guilty beyond a reasonable doubt in criminal proceedings [1] and the complimentary right of an accused to be granted bail while the criminal case against them is pending.

Bail is the security given to a court for the provisional liberty of a person charged in a criminal case, for which a warrant of arrest has been or will be issued, to guarantee the appearance of the accused before any court as required. In other words, upon posting bail, an accused will not need to be detained while the criminal case is ongoing as long as any and all bail conditions are complied with. This allows the accused to adequately prepare their defense without the anxiety and difficulties of detention.

Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.

Bail is not always available to an accused.

The right to bail upon the filing of a Criminal Information, however, is not absolute and is not available to an accused charged with offenses punishable by reclusion perpetua when evidence of guilt is strong. Article III, Section 13 of the 1987 Philippine Constitution states:

“All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required.”

Accordingly, if the Criminal Information charges an individual with a crime not punishable by reclusion perpetua, bail is immediately available as a matter of right and may be processed by a representative of the accused, preferably a lawyer of choice.

How to post Bail?

– Bail Requirements.

The Rules of Court and other issuances of the Supreme Court[2] of the Philippines specify the minimum requirements for the posting of bail. These requirements include:

• A notarized or sworn undertaking and waiver of appearance by the accused that they will appear before the proper court whenever required by the court or the Rules of Court and that failure to appear at the trial without justification and despite due notice shall be deemed a waiver of the right to be present. In such case, the trial may proceed in absentia;
• Four (4) sets of the accused’s mugshots or photographs taken within the last six (6) months showing the face, front, left, and right profiles, of the accused with name and signature at the back of each picture;
• Certified True Copies of the Criminal Information;
• Left and right handprints or fingerprints;
• Barangay Certification intended for bail purposes, reflecting the real name and residence of the accused;
• Location plan or house sketch of the accused, certified by the barangay;
• If the accused is detained by or voluntarily surrendered to the police in a place different from where the case is pending, a certificate of detention showing the name, designation, and signature of the personnel authorized to issue the certification;
• Payment of bail amount recommended or imposed by the Court;
• Certified copy of the Order specifying the amount of bail if different from the specified amount recommended in the Criminal Information;
• If bail is posted by corporate surety bond, presentation of the original certificate of accreditation and authority issued by the Court Administrator containing the photograph of the authorized agent and a copy thereof; and
• If bail is posted by property bond, the transfer certificate of title of the property and its latest tax declaration.

As stated in OCA Circular No. 204-2022-AA, the above requirements are only the minimum documentary requirements for posting of bail.

Thus, it is prudent and highly recommended that when a Criminal Information has already been filed and raffled to a specific branch of that court, a representative of the accused inquires with the court to ask for the specific bail requirements of that court. Some courts may require a specific format for the undertaking or dispense with and no longer require strict compliance with the above requirements.

Note, however, that several of the documents required for the processing of bail may be secured or initially processed even prior to posting bail, particularly the barangay certification and house sketch of the residence of the accused, which may be in a city or province other than where bail will be posted.

Upon completion of the requirements to the satisfaction of the court, an order of release shall be issued granting bail and the provisional liberty of the accused, setting for the conditions that must be complied by the accused.

Should bail or any of its requirements need to be posted or processed or should bail be initially unavailable, whether by insufficiency of finances or a recommendation of ‘no bail’ in a Criminal Information, we recommend immediately consulting a lawyer to be apprised of remedies available to your particular circumstances.

[1]              Article III Section 14(2) of the 1987 Philippine Constitution.

[2]              Rule 114 Section 2; OCA Circular No. 204-2022-AA; A.M. No. 04-7-02-SC.