Bail: Getting Out of Jail While a Criminal Case Goes On

What Bail Is and When It Is a Right

Bail is the security given so that a person in the custody of the law can be released, on the condition that they will appear in court whenever required (Rule 114, Section 1 of the Rules of Court). It is not a fine and not a payment to the other side. It is a guarantee that you will come back.

Article III, Section 13 of the Constitution says that everyone is entitled to bail before conviction, except those charged with offenses punishable by reclusion perpetua when the evidence of guilt is strong. The right to bail continues even if the privilege of the writ of habeas corpus is suspended, and excessive bail shall not be required.

Under Rule 114 (Sections 4, 5 and 7):

Some light offenses need no bail at all, for example cases under the Rule on Summary Procedure, where the accused is usually not arrested.

The Four Kinds of Bail

• Cash bail (Section 14): you deposit the full amount in cash. You get it back when the case ends, after any fine and court costs are deducted.
• Corporate surety bond (Section 10): a bonding or insurance company licensed to issue bail bonds guarantees the amount. You pay the company a premium (its fee), which is usually much smaller than the bail but is not returned to you. Check that the company is accredited by the court before paying.
• Property bond (Sections 11 to 13): real property (land or a house) is used as security. The owners must live in the Philippines and the property must be worth at least the bail amount, over and above debts. The bond is annotated (noted) on the title at the Registry of Deeds and on the Tax Declaration within 10 days after approval.
• Recognizance (Section 15 and Republic Act No. 10389 (RA 10389), the Recognizance Act of 2012): release without money, on the written promise of a responsible person (a custodian) that you will appear in court.

Recognizance under RA 10389. It is for an accused who is indigent (too poor to post bail), charged with an offense not punishable by death, reclusion perpetua or life imprisonment. The accused must file a sworn statement of indigency, a certification of indigency from the local social welfare office, and must already have been arraigned (formally told of the charge in court and asked to plead). The custodian must be a person of good standing living in the accused's barangay, not a close relative, and from a group such as a church, school, or a social welfare or charitable organization. A custodian who fails to produce the accused without a valid reason can be jailed for six months to two years. Some persons are disqualified, for example repeat offenders, those who jumped bail before, or those likely to flee.

How the Amount Is Set

The judge decides the amount. Under Rule 114, Section 9, the judge looks at:

• the accused's financial ability to give bail;
• the nature and circumstances of the offense, and the penalty for it;
• the accused's character, reputation, age and health;
• the weight of the evidence;
• the chance that the accused will appear at trial, and whether they jumped bail before; and
• whether the accused has other pending cases.

Prosecutors recommend an amount to the court using the 2018 Bail Bond Guide of the Department of Justice (Department Circular No. 013, Series of 2018). For many offenses under the Revised Penal Code with prison terms, its starting point is ₱6,000 for each year of the maximum penalty, with different figures for some crimes and special laws. For offenses punishable by reclusion perpetua or life imprisonment, it recommends "no bail". The recommended amount is usually written on the Information (the formal charge) or the warrant of arrest. It is only a recommendation: the judge may set a lower or higher amount.

If the amount is too high for you, you or your lawyer can file a motion to reduce bail. Section 20 allows the court to increase or reduce bail for good cause.

Where and How to Post Bail

• Where the case is filed: post bail with the court where the case is pending. If that judge is absent or unavailable, any other judge in the same province, city or municipality may approve it (Section 17).
• If you were arrested somewhere else: you may post bail with a Regional Trial Court in the place of arrest, or with a lower court judge there if no Regional Trial Court judge is available.
• If you are detained but no case has been filed in court yet, for example after an inquest: you may apply for bail with any court in the province, city or municipality where you are held.
• Cash bail is paid to the government office the court directs, and you get an Official Receipt. Keep it: you will need it to get the money back.
• A bail hearing is needed for discretionary bail and for offenses punishable by reclusion perpetua or life imprisonment, and those applications must be filed in the court where the case is pending.

Once the judge approves the bail, the court issues an order of release, and the jail must release you.

Applying for bail does not stop you from questioning an illegal arrest, a defective warrant, or the lack of a proper preliminary investigation, as long as you raise it before you enter your plea (Section 26).

Never pay anyone at a police station or jail who offers to "fix" bail. Bail is approved only by a judge. See What are my rights if I am arrested?

After Release, Forfeiture, and Getting the Bail Back

Conditions while out on bail (Section 2):

• you must appear in court whenever required;
• if you fail to appear at trial without a valid reason despite notice, you are treated as having given up your right to be present, and the trial can go on without you (trial in absentia); and
• you may not leave the Philippines without the court's permission. If you try, you can be arrested without a warrant (Section 23).

Forfeiture. If you fail to appear when required, the court declares the bail forfeited (Section 21) and orders your arrest. The bondsmen (the surety company or the people who posted the bond) are given 30 days to produce you and explain why you did not appear. If they fail, the court orders them to pay the bail amount.

Getting the bail back. Bail is automatically cancelled when you are acquitted, when the case is dismissed, or when a judgment of conviction is carried out (Section 22).

• Cash bail: it is applied to any fine and costs, and the rest is returned to you or to whoever deposited it (Section 14). File a request (usually a motion) with the court for the release of the cash bond, and bring the Official Receipt and an ID.
• Property bond: ask the court for an order cancelling the bond, and bring it to the Registry of Deeds and the assessor's office to remove the annotation.
• Surety bond: the bond is cancelled, but the premium you paid the company is its fee and is not refunded.

For free legal help, go to the Public Attorney's Office (PAO) or an IBP legal aid office. To start a case as a victim, see filing a criminal complaint.