Beruflich Dokumente
Kultur Dokumente
in Cases of
Rape
and
Domestic
Violence
Legal Assistance Centre 1
What is bail?
Bail is the conditional release of a person charged with a criminal
offence. To be released, the accused person must provide a money
deposit (or the promise of a money deposit) and promise to attend
court at a later date.
When a person has been arrested and charged with a crime, the
police must bring him before a magistrate or a judge in court as soon
as possible. This should happen within 48 hours. The magistrate or
judge must decide if the accused person should remain in jail until
the trial or if he should be released on bail.
Being “free on bail” is not really the same as being free. The accused
person is allowed to live in society until the trial is over, but he must
still attend court on the day of the trial.
The magistrate or judge will often set conditions that the accused
person must follow during his release. These conditions last until
the trial is finished. If the accused person is found guilty at trial and
not sentenced immediately, the magistrate or judge may reconsider
bail or the bail conditions at that time.
Why
give
bail?
Some people think that a person
who has been accused of rape or domestic violence
should not be given bail. But being accused of a crime is not the same
thing as being guilty of a crime.
I have
been charged
with raping a
woman in Oshakati.
But I was at a meeting
in Windhoek that week.
Many people saw me
there! It must be a That is
mistake. Someone else bad luck for you.
who looks a bit like If you don’t get bail,
me must have you may have to wait
raped her. in jail for a long time
before you even get
a chance to explain
your side of
the story.
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Being denied bail is a serious hardship for the accused person.
There is often a long period of time between the arrest and the
trial. The courts are very busy and trials are scheduled months in
advance. It also takes time for the lawyers to prepare the case and
notify witnesses. An accused may spend months or even years in
custody if he does not get bail.
The time the accused spends in jail waiting for the trial may be
longer than the time he would spend in jail if he were found guilty
of the crime. During this time, his family may suffer, and he could
lose his job and home.
The Constitution of Namibia says that all persons are innocent until
proven guilty. This means that accused persons should normally be
free to live in the community and continue their lives until the trial
is finished. Keeping accused persons in jail before the trial is a harsh
measure that should be used only in situations where they may run
away, interfere with witnesses, or be a danger to other people.
4
How does bail work?
There are two requirements for bail:
1. The accused pays money or promises to pay money.
2. The magistrate or judge sets conditions.
The amount that the accused must pay will be different in each case.
It might be $200 or $2000, depending on the situation. The payment
of money is meant to ensure that the accused person returns to
court. If the accused attends the trial, the government returns the
money. If the accused does not attend the trial, the government
keeps the money. (If the accused does not attend the trial, the police
will also search for him and arrest him.)
In cases of rape, the court MUST add conditions to make sure that the
accused will not make contact with the complainant.
I am granting you
bail on the condition that you do
not go near the complainant’s house or
attempt to communicate with her in any way.
This will ensure that you do not try to
intimidate her into withdrawing
the case.
6
What happens at a
bail hearing?
The government employs lawyers called prosecutors. Prosecutors
represent the government in criminal matters. The prosecutor
is not the complainant’s lawyer, but the prosecutor has a duty
to represent the complainant’s interests during the bail hearing.
If the accused has a lawyer, that lawyer will attend the hearing. The
accused’s lawyer will tell the magistrate or judge why bail should be
granted and suggest what conditions should be set. For example,
the accused’s lawyer might argue for bail by saying that the accused
has a job or is supporting a family.
The prosecutor will tell the judge or magistrate about the crime
the person is accused of committing. The prosecutor will provide
important information, such as whether the accused knows the
complainant, how serious the complainant’s injuries are or whether
the accused has threatened any witnesses.
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I was raped, Don’t be Even if he is
but I am afraid to afraid! If he set free on bail to wait
report the crime to made threats for the trial, the court will
the police. The man who like that, he is make an order saying that
raped me said that he unlikely to he is not allowed to come
would kill me if I did. get bail. anywhere near you
And he knows during that time.
where I live.
The magistrate or judge may ask for more information from the
prosecutor, or from the accused’s lawyer. The magistrate or judge
may want to hear witnesses to get more facts before making a
decision. The police officer who is investigating the case will often
be a witness at a bail hearing.
He You
followed me might be
for weeks in danger if he
before the rape. gets out on bail.
I saw him We must make
watching my sure that the
house. court hears
about this.
9
How does the
magistrate or judge
decide whether to
release an accused
person on bail?
The judge or magistrate will consider the personal
?
circumstances of the accused, the circumstances of
the crime and other relevant information before
making a decision about bail.
10
What should you do if the accused
does not follow the bail conditions?
If you know that an accused person is not following the bail conditions,
you should go to the police to report this as soon as possible. It is best
to tell the original police officer from your case. Make sure you have
the names and contact information of any witnesses who saw that the
bail conditions were not met if they cannot come with you to the police
station.
The police must inform the prosecutor straight away. The prosecutor will
decide whether or not the breach is serious enough to have the accused
arrested. If he is arrested, he will have to come to court. The magistrate
or judge will decide if he actually violated the bail conditions.
If you made a complaint to the police and the person who violated
the bail conditions is not arrested, contact the police station to
find out what is happening. It may be that the prosecutor has
decided not to act because the violation was not too serious.
If that is the case, ask for the reason for this decision. In other
cases, it may be that the police cannot locate the accused to
arrest him. You may be able to help them with that.
11
Can bail be
cancelled in other
circumstances?
Even if the accused follows all the bail conditions, bail may still be
cancelled. This might happen if the accused did something that was
not specifically forbidden but is still a threat or a problem, such as:
the accused interferes with or threatens witnesses – for example,
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if the accused asks the complainant to withdraw the criminal charge;
the accused poses a threat to the safety of the public or a
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particular person – for example, if the accused has threatened the
complainant or a member of the complainant’s family;
there is evidence to show that the accused will not attend the
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trial – for example, if someone has information that the accused is
planning to leave Namibia;
the accused presented false information at the original bail hearing
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– for example, if the accused said that he had never been arrested
for a similar crime and then some previous convictions come to
light.