Pre-trial detention

Lady Justice—allegory of justice—statue at court building in Olomouc

Not to be confused with Remand (court procedure).

Remand or pre-trial detention is the process of keeping a person who has been arrested in custody before conviction. Those charged with serious crimes may be held in a remand prison until trial or sentencing. Varying terminology is used, but "remand" is generally used in common law jurisdictions. Continued detention after conviction is referred to as imprisonment.

Because imprisonment without trial is contrary to the presumption of innocence, in liberal democracies pre-trial detention is usually subject to safeguards and restrictions. If it is not necessary in the public interest to remand an accused person in custody, they are released on bail.

Detention before charge

The pre-charge detention period is the period of time during which an individual can be held and questioned by police, prior to being charged with an offence. Not all countries have such a concept, and in those that do, the period for which a person may be detained without charge varies by jurisdiction.

The prohibition of prolonged detention without charge, habeas corpus, was first introduced in England about a century after Magna Carta; the use of habeas corpus ad subjiciendum in 1305 was cited by William Blackstone.

Czech Republic

Czech Police station in Teplice

Under Article 8 of the Charter of Fundamental Rights and Basic Freedoms of the Czech Republic, which has the same legal standing as the Czech Constitution, a suspect must be immediately familiarized with the grounds of detention, must be interviewed and within 48 hours either released or charged and handed over to a court. The court then has a further 24 hours either to order a custody, or to release the person detained.

Detailed rules of detention are included in the Criminal Procedural Code. The police may arrest and detain a suspect after obtaining prosecutor's consent. In an urgent case the police may detain a suspect without the consent. In both cases, however, the police detention may take place only when grounds for pre-trial detention exist (see below). The statutory limits of 48 + 24 hours must be complied with and reaching the time limit should aways trigger immediate release, unless a court has ordered pre-trial custody.

Anybody may detain a person, who was caught while perpetrating a crime (not a misdemeanor) or immediately after it, when capturing of the perpetrator is necessary to either ascertain the perpetrator's identity or to prevent the perpetrator from escaping or to secure evidence. The perpetrator must immediately be handed over to the police, or when that is not possible, detention of the perpetrator must be immediately reported to the police.

United States

In the United States, a person is protected by the federal constitution from being held in prison unlawfully. The right to have one′s detention reviewed by a judge is called habeas corpus. The U.S. Constitution states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it". A declaration of a state of emergency can suspend the right to habeas corpus.

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; ... nor be deprived of life, liberty, or property, without due process of law

—Fifth Amendment to the United States Constitution

The Sixth Amendment requires criminal defendants to be "informed of the nature and cause of the accusation". The U.S. Bill of Rights thus grants some protection against being held without criminal charge, subject to the courts' interpretation of what due process means. Federal authorities have also exercised the power to arrest people on the basis of being a material witness. Involuntary commitment of the mentally ill is another category of detention without criminal prosecution, but the right of habeas corpus still applies. The scope of such detentions is also limited by the Bill of Rights, and the practice is controversial, especially when applied to sex offenders.

The executive's military powers have been used to justify holding enemy combatants as prisoners of war, unlawful combatants, and civilian internees; the latter two practices have been controversial, especially with regard to the indefinite detention implied by uncertainty as to when the "War on Terror" might be declared to have ended. Administrative detention, a term applied to many of these categories, is also used to imprison illegal immigrants.

Pre-trial supervision

Häktning (Swedish law)

Häktning is a pre-trial supervision measure pursuant to Swedish law, meaning that a suspect can be detained by a court in the case of crimes for which there is a prison term of one year or more. There are two degrees of suspicion:

• reasonable suspicion (the lower level of suspicion), or
• probable cause (the higher level of suspicion).

Reason for detention is if the crime is a statutory minimum penalty of at least 1 year, and one of:

1. risk of recidivism;
2. risk that the suspect will destroy evidence or otherwise affect the investigation of the crime;
3. risk that the suspect will flee prosecution or punishment,

or, for "probable cause" suspicion and also for lesser crimes:

1. the suspect is without permanent residence in Sweden, and can be assumed wanting to leave Sweden.
2. the identity of the suspect is not established, if he refuses to say it or has given a false identity.

A person may be held in custody for a period of normally not more than 14 days (seven days if only the degree of suspicion "reasonable suspicion" exists), then normally new remand hearing should be held. For suspect who has not yet turned 18 needed "serious reasons" for detention decisions are to be notified of the court.

A person, with less serious crimes, they are given by prosecutors a summary penalty order.

A person who was häktad but was not charged (or was freed after trial) is entitled to financial compensation, with an amount determined by the Chancellor of Justice. It is usually around 500 SEK (US$80) per day for the suffering, somewhat more if there was media attention, plus compensation for lost work income. 1200 people were compensated in 2007. If the prisoner is sentenced, the time as häktad counts as a part of the prison time, so that less time will remain after the trial.

The Committee for the Prevention of Torture of the Council of Europe has repeatedly criticized pre-trial detention in Sweden for the high percentage of cases where restrictions on communication are applied. Such communication restrictions means in Sweden no visits, no telephone calls, no newspapers and no TV.

Detention after charge

See also: Bail

The term "remand" may be used to describe the process of keeping a person in detention rather than granting bail. A prisoner who is denied, refused or unable to meet the conditions of bail, or who is unable to post bail, may be held in a prison on remand. Although remanded prisoners are usually detained separately from sentenced prisoners, due to prison overcrowding they are sometimes held in a shared accommodation with sentenced prisoners. Reasons for being held in custody on remand vary depending on the local legal system, but may include:

• the suspect has been accused of carrying out a particularly serious offence
• the suspect having previous convictions for similar offences
• reasons to believe the suspect could leave the court's jurisdiction to avoid its trial and possible punishment
• reasons to believe the suspect may destroy evidence or interfere with witnesses
• the suspect is likely to commit further offences before the trial
• the suspect is believed to be in danger from accomplices, victims, or vigilantes

In most countries, remand prisoners are considered innocent until proven guilty by a court and may be granted greater privileges than sentenced prisoners. For example, most jurisdictions that prohibit convicted criminals from voting in elections will still allow remand prisoners to vote, unless they have been disqualified from voting for some other reason. Other privileges commonly granted include:

• wearing own clothes rather than prison uniform
• being entitled to additional visiting hours per week
• not being required to complete prison-related work or education

Not all remand prisons grant these privileges, in particular, remand prisoners are often forced to wear prison uniforms and denied additional visitation rights, supposedly for safety reasons, although some facilities allow remand prisoners to wear a uniform that is a different color or otherwise clearly distinguishable from the uniforms of convicted criminals. Often they are denied all visits and all newspaper and media access, for risk of interfering with the investigation, such as communicating a story with fellow remand prisoners.

Czech Republic

Seal of the Czech prison service

Olomouc remand prison

Buses of the Czech prison service are characterized by its white-violet color scheme and absence of windows in the prison section

See also: Bail in the Czech Republic

Under Article 8 (5) of the Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Constitution, nobody shall be taken into custody except on the basis of a court decision, and for reasons and a detention period stipulated by the law.

Detailed rules of remand custody are contained in the Criminal Procedural Code. A person may be remanded in custody by the decision of a court only when a number of preconditions is met cumulatively:

• he or she has been charged with committing a crime which is punishable by
  • more than two years of imprisonment in case of intentionally committed crime, or
  • more than three years of imprisonment in case of negligently committed crime,

(the 2/3 years rule is subject to certain defined statutory exceptions, e.g. where a suspect has already been evading the proceedings) and

• there are reasonable grounds indicating that the alleged act was committed and it has all features of the given crime, and
• there are apparent reasons for suspicion, that the act was committed by the charged person, and
• because of the personality of the charged person, the nature of the crime and its gravity, the objective of the custody may not be reached by a different measure.

At the same time, there must be reasonable concern, that the charged person may either

• (a) escape or evade the criminal proceedings, or
• (b) influence witnesses or otherwise similarly frustrate the proceedings, or
• (c) continue criminal activity with which he or she was charged, or finish a criminal act he or she had attempted, or commit a criminal act he or she was preparing or threatening to commit.

The charged person may be remanded in custody subject to maximum terms as follows:

• one year in cases of crimes which are dealt with by a single judge,
• two years in cases of crimes which are dealt with by a panel of three judges,
• three years in cases of felony crimes (i.e. intentional crimes punishable by a sentence with an upper jail term of at least 10 years)
• four years in cases punishable by an exceptional penalty (i.e. 20 – 30 years or life imprisonment)

one third of the maximum detention periods time may be exhausted in pre-trial proceedings and two thirds may be exhausted during the trial. Reaching the maximum time is always reason for immediate release.

An exception to the time limits above arises in cases of remand due to concern of (b) interfering with witnesses or similar frustration of proceedings, in which case the maximum pre-trial detention period may be only three months, except where the charged person has already been influencing witnesses or otherwise frustrating the proceedings.

The court must review the reasons for the pre-trial custody every three months and decide either to continue it, or to release the charged person. Both the prosecutor and the person in custody may file a complaint against any decision on custody, which leads to review by an appellate court.

Special rules of remand pertain to persons who are processed for extradition, e.g. illegal foreigners, those detained due to international (foreign) warrant or the European Arrest Warrant.

Conditions in Czech remand prisons

In the Czech Republic, remand takes place in remand prisons or in separated sections of standard prisons. Remand prisons are often in city centres and appertain to court houses. Most remand prisons are over 80 years old, with some, like Pankrác Prison, being more than 125 years old. Men, women and juveniles are held separately. Also persons charged with committing different types of crimes (e.g. unintentional, intentional, violent, etc.) are held separately.

Deficiencies of remand prisons according to 2010 Czech ombudsman's report

• insufficient daylight
• too intensive nightlight
• insufficient space for out-walks
• lack of leisure activities
• lack of working opportunities
• presence of prison guards during health care delivery
• restricted access to telephone

Cells have capacity varying between 1—8 beds, with most having between 2—4 beds. Some remand prisons have rooms intended for watching TV, gyms or chapels, but these are exceptional mainly due to overcrowding and lack of space. All have special areas for interviews between the inmates and their attorneys, visiting rooms and courtyards for out-walks.

Each cell has a WC divided from the rest of the cell-space and running cold water. Each cell-mate has own bed, storage locker and chair.

Inmates which are held due to concern of influencing witnesses are held in isolation with very limited possibility of contact with other inmates as well as the outer world (apart from interviews with own attorneys).

At any given time in 2011, there were around 2.500 inmates in the Czech remand prisons (including ~170 women and ~45 juveniles), compared to some 20.500 convicted inmates (for 10,6 million population). The average length of remand custody is around 100 days, with few inmates spending in remand more than 2 years.

More than half of foreign inmates of the Czech remand prisons are from Slovakia, Ukraine and Vietnam. Other numerous foreigners are from Bulgaria, Macedonia, Moldova, Poland, Romania, Russia and Serbia. When it comes to non-European states, there are numerous detainees from Nigeria, Algeria, Morocco, Uzbekistan, Kazakhstan and Mongolia. There are mostly only few individuals of other nationalities.

United States

The Eighth Amendment to the United States Constitution prohibits excessive bail. Under the US Code, pretrial detention of federal suspects is allowed only under certain circumstances, such as when the defendant is a danger to witnesses or jurors.

Criticisms

One criticism of pre-trial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to restore to the defendant the days already spent in jail. Pretrial detention alters a defendant's incentives by making his or her best-case scenario not zero days in jail, but the length of time served pretrial. Therefore, a defendant may be more likely to plead guilty if the chance of acquittal is low, or if the expected sentence on a guilty plea is less than the amount of jail time that would be served pretrial. Pretrial detainees may also find it harder to mount an effective defense.

See also

• Detention (imprisonment)
• Remand (court procedure)
• Prisoner
• Law enforcement agency powers
• Arbitrary arrest and detention
• Defence Regulation 18B
• Extrajudicial detention
• Immigration detention
• Nightwalker Statute
• Powers of the police in England and Wales
• Quasi-criminal
• Restorative justice
• Security certificate
• Summary jurisdiction
• Unlawful combatant