Criminal Defense Wiki - User contributions [en]

International Criminal Court

2010-08-02T10:03:25Z

Mmurray: /* Codes and Tools */

International Criminal Court

2010-08-02T10:03:06Z

Mmurray: /* Current Investigations and Trials of the ICC */

International Criminal Court

2010-08-02T10:02:06Z

Mmurray: /* Requirements for filing a case */

International Criminal Court

2010-08-02T09:55:04Z

Mmurray: /* Complementarily */

International Criminal Court

2010-08-02T09:54:30Z

Mmurray: /* Jurisdiction */

International Criminal Court

2010-08-02T09:48:48Z

Mmurray: /* Composition of the Court */

International Criminal Court

2010-08-02T09:08:33Z

Mmurray: /* Background */

International Criminal Court

2010-08-02T09:07:26Z

Mmurray: /* History */

International Criminal Court

2010-08-02T08:57:17Z

Mmurray: /* Background */

Pre-Trial Detention

2010-07-26T14:36:19Z

Mmurray: /* Practical Tips for Lawyers */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> What constitutes a reasonable amount of time is assessed within the context of each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation, which included a six-month limit on pre-trial detention, was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as the right to ''habeas corpus'' or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held, and have access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 8 of the Universal Declaration of Human Rights establishes that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused people charged with crimes. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by Azerbaijan's judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, international standards and practical implementation ===

There is not much discrepancy between Azerbaijan's domestic codes and international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though bail exists as a remedy to pre-trial detention, it is extremely rare. Often, a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the lower court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to affect change in Azerbaijan's legislation is by appealing to the European Court of Human Rights. In the past year, a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD)
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. Once the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms 'reasonable' and 'necessary' are not strictly interpreted in accordance with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of ''habeas corpus''. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release him/her. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum, an individual may be detained during both pre-trial and trial detention for a total of nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay bail and remain in custody. Therefore, even though bail is frequently granted, in practice bail is an ineffective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Often, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Articles 20-21 of the Indonesia Criminal Procedure Law, pretrial detention is only justified in the following cases:
* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: the individual committed a crime that is penalized with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence. Additionally, the suspect should receive the arrest warrant, and his/her family should receive a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, the standard has never been clarified. Additionally, it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill, or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law; however, in practice, judges rarely release the accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are no other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Filipino law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful if it stems from a lawful order from a court with jurisdiction over the case, and is reasonable upon a finding of probable cause. Probable cause can be deduced when a crime is committed and the accused probably committed it. As to the 'necessary' element, detention is often the general rule when an indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. ''Habeas Corpus'' is available to challenge illegal detainment. Both the accused and his or her representative or family member is able to file a writ of ''habeas corpus''.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is village conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However, lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused, who are unaware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the problem of having massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully, it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's law of only allowing pretrial detention when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or for personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If bail or release on personal recognizance aren't possibilities, or are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T14:33:50Z

Mmurray: /* Rwanda */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> What constitutes a reasonable amount of time is assessed within the context of each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation, which included a six-month limit on pre-trial detention, was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as the right to ''habeas corpus'' or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held, and have access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 8 of the Universal Declaration of Human Rights establishes that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused people charged with crimes. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by Azerbaijan's judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, international standards and practical implementation ===

There is not much discrepancy between Azerbaijan's domestic codes and international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though bail exists as a remedy to pre-trial detention, it is extremely rare. Often, a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the lower court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to affect change in Azerbaijan's legislation is by appealing to the European Court of Human Rights. In the past year, a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD)
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. Once the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms 'reasonable' and 'necessary' are not strictly interpreted in accordance with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of ''habeas corpus''. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release him/her. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum, an individual may be detained during both pre-trial and trial detention for a total of nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay bail and remain in custody. Therefore, even though bail is frequently granted, in practice bail is an ineffective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Often, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Articles 20-21 of the Indonesia Criminal Procedure Law, pretrial detention is only justified in the following cases:
* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: the individual committed a crime that is penalized with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence. Additionally, the suspect should receive the arrest warrant, and his/her family should receive a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, the standard has never been clarified. Additionally, it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill, or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law; however, in practice, judges rarely release the accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are no other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Filipino law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful if it stems from a lawful order from a court with jurisdiction over the case, and is reasonable upon a finding of probable cause. Probable cause can be deduced when a crime is committed and the accused probably committed it. As to the 'necessary' element, detention is often the general rule when an indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. ''Habeas Corpus'' is available to challenge illegal detainment. Both the accused and his or her representative or family member is able to file a writ of ''habeas corpus''.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is village conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However, lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused, who are unaware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the problem of having massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T14:30:45Z

Mmurray: /* Azerbaijan */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> What constitutes a reasonable amount of time is assessed within the context of each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation, which included a six-month limit on pre-trial detention, was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as the right to ''habeas corpus'' or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held, and have access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 8 of the Universal Declaration of Human Rights establishes that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused people charged with crimes. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by Azerbaijan's judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, international standards and practical implementation ===

There is not much discrepancy between Azerbaijan's domestic codes and international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though bail exists as a remedy to pre-trial detention, it is extremely rare. Often, a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the lower court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to affect change in Azerbaijan's legislation is by appealing to the European Court of Human Rights. In the past year, a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD)
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. Once the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms 'reasonable' and 'necessary' are not strictly interpreted in accordance with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of ''habeas corpus''. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release him/her. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum, an individual may be detained during both pre-trial and trial detention for a total of nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay bail and remain in custody. Therefore, even though bail is frequently granted, in practice bail is an ineffective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Often, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Articles 20-21 of the Indonesia Criminal Procedure Law, pretrial detention is only justified in the following cases:
* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: the individual committed a crime that is penalized with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence. Additionally, the suspect should receive the arrest warrant, and his/her family should receive a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, the standard has never been clarified. Additionally, it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill, or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law; however, in practice, judges rarely release the accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are no other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Filipino law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful if it stems from a lawful order from a court with jurisdiction over the case, and is reasonable upon a finding of probable cause. Probable cause can be deduced when a crime is committed and the accused probably committed it. As to the 'necessary' element, detention is often the general rule when an indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. ''Habeas Corpus'' is available to challenge illegal detainment. Both the accused and his or her representative or family member is able to file a writ of ''habeas corpus''.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is village conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T14:27:50Z

Mmurray: /* Philippines */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> What constitutes a reasonable amount of time is assessed within the context of each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation, which included a six-month limit on pre-trial detention, was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as the right to ''habeas corpus'' or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held, and have access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 8 of the Universal Declaration of Human Rights establishes that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused people charged with crimes. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by Azerbaijan's judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between different country's laws/codes, international standards and practical implementation ===

There is not much discrepancy between Azerbaijan's domestic codes and international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though bail exists as a remedy to pre-trial detention, it is extremely rare. Often, a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the lower court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to affect change in Azerbaijan's legislation is by appealing to the European Court of Human Rights. In the past year, a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD)
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. Once the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms 'reasonable' and 'necessary' are not strictly interpreted in accordance with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of ''habeas corpus''. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release him/her. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum, an individual may be detained during both pre-trial and trial detention for a total of nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay bail and remain in custody. Therefore, even though bail is frequently granted, in practice bail is an ineffective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Often, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Articles 20-21 of the Indonesia Criminal Procedure Law, pretrial detention is only justified in the following cases:
* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: the individual committed a crime that is penalized with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence. Additionally, the suspect should receive the arrest warrant, and his/her family should receive a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, the standard has never been clarified. Additionally, it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill, or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law; however, in practice, judges rarely release the accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are no other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Filipino law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful if it stems from a lawful order from a court with jurisdiction over the case, and is reasonable upon a finding of probable cause. Probable cause can be deduced when a crime is committed and the accused probably committed it. As to the 'necessary' element, detention is often the general rule when an indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. ''Habeas Corpus'' is available to challenge illegal detainment. Both the accused and his or her representative or family member is able to file a writ of ''habeas corpus''.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is village conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T14:23:03Z

Mmurray: /* Indonesia */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> What constitutes a reasonable amount of time is assessed within the context of each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation, which included a six-month limit on pre-trial detention, was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as the right to ''habeas corpus'' or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held, and have access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 8 of the Universal Declaration of Human Rights establishes that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused people charged with crimes. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by Azerbaijan's judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between different country's laws/codes, international standards and practical implementation ===

There is not much discrepancy between Azerbaijan's domestic codes and international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though bail exists as a remedy to pre-trial detention, it is extremely rare. Often, a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the lower court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to affect change in Azerbaijan's legislation is by appealing to the European Court of Human Rights. In the past year, a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD)
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. Once the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms 'reasonable' and 'necessary' are not strictly interpreted in accordance with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of ''habeas corpus''. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release him/her. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum, an individual may be detained during both pre-trial and trial detention for a total of nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay bail and remain in custody. Therefore, even though bail is frequently granted, in practice bail is an ineffective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Often, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Articles 20-21 of the Indonesia Criminal Procedure Law, pretrial detention is only justified in the following cases:
* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: the individual committed a crime that is penalized with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence. Additionally, the suspect should receive the arrest warrant, and his/her family should receive a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, the standard has never been clarified. Additionally, it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill, or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law; however, in practice, judges rarely release the accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are no other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T14:18:51Z

Mmurray: /* Georgia */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> What constitutes a reasonable amount of time is assessed within the context of each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation, which included a six-month limit on pre-trial detention, was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as the right to ''habeas corpus'' or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held, and have access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 8 of the Universal Declaration of Human Rights establishes that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused people charged with crimes. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by Azerbaijan's judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between different country's laws/codes, international standards and practical implementation ===

There is not much discrepancy between Azerbaijan's domestic codes and international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though bail exists as a remedy to pre-trial detention, it is extremely rare. Often, a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the lower court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to affect change in Azerbaijan's legislation is by appealing to the European Court of Human Rights. In the past year, a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD)
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. Once the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms 'reasonable' and 'necessary' are not strictly interpreted in accordance with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of ''habeas corpus''. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release him/her. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum, an individual may be detained during both pre-trial and trial detention for a total of nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay bail and remain in custody. Therefore, even though bail is frequently granted, in practice bail is an ineffective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Often, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Article 20-21 of the Indonesia Criminal Procedure Law, pretrial detention can only be conducted based on two reasons:

* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: individual committed a crime that is charged with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence; and the suspect should receive the arrest warrant; and his/her family receives a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, it has never been clarified regarding the standard. Additionally it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law, however, in practice judges rarely release accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are not other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T14:10:51Z

Mmurray: /* Azerbaijan */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> What constitutes a reasonable amount of time is assessed within the context of each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation, which included a six-month limit on pre-trial detention, was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as the right to ''habeas corpus'' or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held, and have access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 8 of the Universal Declaration of Human Rights establishes that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused people charged with crimes. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by Azerbaijan's judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between different country's laws/codes, international standards and practical implementation ===

There is not much discrepancy between Azerbaijan's domestic codes and international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though bail exists as a remedy to pre-trial detention, it is extremely rare. Often, a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the lower court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to affect change in Azerbaijan's legislation is by appealing to the European Court of Human Rights. In the past year, a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD,
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. One the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms reasonable and necessary are not strictly interpreted in accord with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of habeas corpus. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum an individual may be detained during both pre-trial and trial detention for nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay the bail and they remain in custody. Therefore, even though bail is granted many times, in practice bail is not an effective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Many times, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Article 20-21 of the Indonesia Criminal Procedure Law, pretrial detention can only be conducted based on two reasons:

* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: individual committed a crime that is charged with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence; and the suspect should receive the arrest warrant; and his/her family receives a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, it has never been clarified regarding the standard. Additionally it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law, however, in practice judges rarely release accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are not other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T13:51:20Z

Mmurray: /* Judicial Review of Confinement */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> What constitutes a reasonable amount of time is assessed within the context of each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation, which included a six-month limit on pre-trial detention, was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as the right to ''habeas corpus'' or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held, and have access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 8 of the Universal Declaration of Human Rights establishes that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused who have been charged with a crime. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by the judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

There is not much discrepancy between the codes and the international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though Bail exists as a remedy to pre-trial detention, it is extremely rare. Many times a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to effect change in Azerbaijan legislation is by appealing to the European Court of Human Rights. In the past year a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD,
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. One the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms reasonable and necessary are not strictly interpreted in accord with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of habeas corpus. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum an individual may be detained during both pre-trial and trial detention for nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay the bail and they remain in custody. Therefore, even though bail is granted many times, in practice bail is not an effective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Many times, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Article 20-21 of the Indonesia Criminal Procedure Law, pretrial detention can only be conducted based on two reasons:

* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: individual committed a crime that is charged with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence; and the suspect should receive the arrest warrant; and his/her family receives a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, it has never been clarified regarding the standard. Additionally it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law, however, in practice judges rarely release accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are not other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T13:17:42Z

Mmurray: /* Length of Pre-Trial Detention */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> What constitutes a reasonable amount of time is assessed within the context of each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation, which included a six-month limit on pre-trial detention, was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as habeas corpus or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held and access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Universal Declaration of Human Rights establishes in Article 8, that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained person without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted the Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused who have been charged with a crime. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by the judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

There is not much discrepancy between the codes and the international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though Bail exists as a remedy to pre-trial detention, it is extremely rare. Many times a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to effect change in Azerbaijan legislation is by appealing to the European Court of Human Rights. In the past year a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD,
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. One the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms reasonable and necessary are not strictly interpreted in accord with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of habeas corpus. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum an individual may be detained during both pre-trial and trial detention for nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay the bail and they remain in custody. Therefore, even though bail is granted many times, in practice bail is not an effective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Many times, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Article 20-21 of the Indonesia Criminal Procedure Law, pretrial detention can only be conducted based on two reasons:

* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: individual committed a crime that is charged with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence; and the suspect should receive the arrest warrant; and his/her family receives a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, it has never been clarified regarding the standard. Additionally it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law, however, in practice judges rarely release accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are not other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T13:08:42Z

Mmurray: /* Background */

= Background =

Pre-trial detention is when a person is held by the State for an offense committed against the laws of the State prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> A reasonable amount of time is assessed in each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation which included a six-month limit on pre-trial detention was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as habeas corpus or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held and access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Universal Declaration of Human Rights establishes in Article 8, that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained person without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted the Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused who have been charged with a crime. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by the judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

There is not much discrepancy between the codes and the international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though Bail exists as a remedy to pre-trial detention, it is extremely rare. Many times a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to effect change in Azerbaijan legislation is by appealing to the European Court of Human Rights. In the past year a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD,
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. One the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms reasonable and necessary are not strictly interpreted in accord with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of habeas corpus. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum an individual may be detained during both pre-trial and trial detention for nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay the bail and they remain in custody. Therefore, even though bail is granted many times, in practice bail is not an effective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Many times, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Article 20-21 of the Indonesia Criminal Procedure Law, pretrial detention can only be conducted based on two reasons:

* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: individual committed a crime that is charged with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence; and the suspect should receive the arrest warrant; and his/her family receives a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, it has never been clarified regarding the standard. Additionally it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law, however, in practice judges rarely release accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are not other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T13:07:26Z

Mmurray: /* International Covenant on Civil and Political Rights */

= Background =

Pre-trial detention is when a person is held by the state for an offense committed against the laws of the state prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that a person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* to prevent interference with evidence
* to prevent the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> A reasonable amount of time is assessed in each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation which included a six-month limit on pre-trial detention was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as habeas corpus or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held and access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Universal Declaration of Human Rights establishes in Article 8, that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained person without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted the Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused who have been charged with a crime. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by the judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

There is not much discrepancy between the codes and the international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though Bail exists as a remedy to pre-trial detention, it is extremely rare. Many times a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to effect change in Azerbaijan legislation is by appealing to the European Court of Human Rights. In the past year a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD,
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. One the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms reasonable and necessary are not strictly interpreted in accord with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of habeas corpus. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum an individual may be detained during both pre-trial and trial detention for nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay the bail and they remain in custody. Therefore, even though bail is granted many times, in practice bail is not an effective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Many times, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Article 20-21 of the Indonesia Criminal Procedure Law, pretrial detention can only be conducted based on two reasons:

* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: individual committed a crime that is charged with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence; and the suspect should receive the arrest warrant; and his/her family receives a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, it has never been clarified regarding the standard. Additionally it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law, however, in practice judges rarely release accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are not other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T13:06:03Z

Mmurray: /* United Nations Standard Minimum Rules for Non-Custodial Measures */

= Background =

Pre-trial detention is when a person is held by the state for an offense committed against the laws of the state prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally, the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings, and only for the protection of society and the victim. Furthermore, governments should pursue alternatives as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* interference with evidence or
* the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> A reasonable amount of time is assessed in each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation which included a six-month limit on pre-trial detention was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as habeas corpus or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held and access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Universal Declaration of Human Rights establishes in Article 8, that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained person without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted the Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused who have been charged with a crime. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by the judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

There is not much discrepancy between the codes and the international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though Bail exists as a remedy to pre-trial detention, it is extremely rare. Many times a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to effect change in Azerbaijan legislation is by appealing to the European Court of Human Rights. In the past year a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD,
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. One the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms reasonable and necessary are not strictly interpreted in accord with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of habeas corpus. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum an individual may be detained during both pre-trial and trial detention for nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay the bail and they remain in custody. Therefore, even though bail is granted many times, in practice bail is not an effective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Many times, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Article 20-21 of the Indonesia Criminal Procedure Law, pretrial detention can only be conducted based on two reasons:

* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: individual committed a crime that is charged with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence; and the suspect should receive the arrest warrant; and his/her family receives a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, it has never been clarified regarding the standard. Additionally it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law, however, in practice judges rarely release accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are not other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T13:05:11Z

Mmurray: /* Universal Declaration of Human Rights */

= Background =

Pre-trial detention is when a person is held by the state for an offense committed against the laws of the state prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings and only for the protection of society and the victim. Furthermore, alternatives should be employed as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* interference with evidence or
* the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> A reasonable amount of time is assessed in each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation which included a six-month limit on pre-trial detention was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as habeas corpus or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held and access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Universal Declaration of Human Rights establishes in Article 8, that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained person without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted the Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused who have been charged with a crime. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by the judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

There is not much discrepancy between the codes and the international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though Bail exists as a remedy to pre-trial detention, it is extremely rare. Many times a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to effect change in Azerbaijan legislation is by appealing to the European Court of Human Rights. In the past year a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD,
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. One the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms reasonable and necessary are not strictly interpreted in accord with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of habeas corpus. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum an individual may be detained during both pre-trial and trial detention for nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay the bail and they remain in custody. Therefore, even though bail is granted many times, in practice bail is not an effective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Many times, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Article 20-21 of the Indonesia Criminal Procedure Law, pretrial detention can only be conducted based on two reasons:

* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: individual committed a crime that is charged with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence; and the suspect should receive the arrest warrant; and his/her family receives a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, it has never been clarified regarding the standard. Additionally it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law, however, in practice judges rarely release accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are not other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

Pre-Trial Detention

2010-07-26T13:04:12Z

Mmurray: /* Background */

= Background =

Pre-trial detention is when a person is held by the state for an offense committed against the laws of the state prior to trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Often, prisoners are held for years without any hope or opportunity for trial. Although there are multiple issues arising from pre-trial detention- from inhumane conditions to the length of detention- this narrative will focus primarily on the determination and length of detention.

= International Standards: Basic Tenets Protecting Against Pre-trial Detention =
An individual's protection against pre-trial detention is grounded in fundamental rights of liberty and security.

== Universal Declaration of Human Rights ==
Under the ''Universal Declaration of Human Rights'', every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when:

# there are reasonable grounds to believe the alleged perpetrator committed a crime,
# there is a danger the alleged offender will flee or
# a danger that the course of justice will be seriously interfered with if the alleged offender is free.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== United Nations Standard Minimum Rules for Non-Custodial Measures ==
Additionally the ''United Nations Standard Minimum Rules for Non-Custodial Measures'' stipulates that governments should use pretrial detention as a last resort in criminal proceedings and only for the protection of society and the victim. Furthermore, alternatives should be employed as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.<ref>Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.</ref>

== International Covenant on Civil and Political Rights ==
Under Article 9(3): "It shall not be the general rule that person awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The above provision, along with the ''Universal Declaration of Human Rights'' has been interpreted by the UN Human Rights Committee<ref>The Human Rights Committee is a UN committee which monitors the implementation of the International Covenant on Civil and Political Rights by the 162 UN Member States.</ref> to mean that:

* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''

The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:

* to prevent flight,
* interference with evidence or
* the recurrence of crime, or
* where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.

The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, any country whose domestic system does not provide an alternative to confinement other than supervised release, which is only granted under specific circumstances without any provisions for bail, is not in conformance with Article 9(3) of the ICCPR.

= Length of Pre-Trial Detention =
Article 9(3) of the ICCPR guarantees a right to trial within a reasonable time, or alternatively the right to release.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> However, "reasonable" is not strictly defined. The Human Rights Committee has interpreted the provision to mean that every individual has a right to a final judgment without undue delay.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Committee has interpreted the provision in this manner to guard against lengthy delays following the commencement of a trial. This provision should protect against long continuances or delays between the presentation of evidence and judgment.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Additionally, it is the State's responsibility to ensure that individuals are not detained prior to trial for an unreasonable amount of time. The burden is not on the accused to assert the right to a prompt trial, but rather on the State.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> A reasonable amount of time is assessed in each individual case.<ref>Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers; Human Rights and Arrest, Pre-Trial Detention and Administrative Detention. Chapter 5, pg. 191.</ref>

In one case, the Committee implied that Yemen's domestic legislation which included a six-month limit on pre-trial detention was too long of a time period to be compatible with Article 9(3) of the ICCPR.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994. Footnote 44.</ref>

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> The Human Rights Committee has urged States to establish a maximum period for pre-trial detention. If an individual is detained for a period exceeding the maximum, the individual should be entitled to release. In establishing a maximum pre-trial detention period, States should evaluate the maximum incarceration period for the alleged crime and determine a proportionate length.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Judicial Review of Confinement =
The right to challenge detention before a judicial authority with the power to order release is guaranteed to any individual deprived of liberty, including pre-trial detainees.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref> This right is in addition to the right to be presented in front of a judicial authority following arrest, and applies whenever an individual is detained. In domestic legislation, this right is often referred to as habeas corpus or amparo proceedings. For effective implementation, the detainee must have notice of why he or she is being held and access to legal counsel.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Universal Declaration of Human Rights establishes in Article 8, that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental right granted him by the constitution or by law."<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

In addition, the ICCPR states in Article 9(4):
# A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
# The proceedings shall be simple and expeditious and at no cost for detained person without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

The Human Rights Committee has interpreted the Article 9(4) to mean that an authority cannot become "a court" simply because it adheres to established legal procedures. The purpose of Article 9(4) is to ensure a court reviews detention, not merely any authority governed by law. A court must be objective and independent.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.<ref>Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.</ref>

= Case Studies =

== Azerbaijan ==

In Azerbaijan, pre-trial detention is the preferred means of dealing with accused who have been charged with a crime. Though alternatives such as home arrest, bail, and police supervision exist, pre-trial detention is overwhelmingly preferred, especially for those charged with grave crimes.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Though the legal codes reflect the terms mandated by the UN, in practice "reasonable" and "necessary" are ignored by the judicial system.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

There is not much discrepancy between the codes and the international standards. However, there is a serious difference in the practical implementation of the laws.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

=== Detainment ===
Courts have determined that less grave crimes require detainment of no more than three months, whereas grave crimes committed by individuals presenting a public danger require a longer detention period of up to twelve months.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Though Bail exists as a remedy to pre-trial detention, it is extremely rare. Many times a court will determine release terms at the same time as bail, therefore release is often the better option by the time bail is determined. In the past year, no one has been released on bail.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The accused may appeal to the Appellate Instance Court to challenge the decision of the court in choosing pre-trial detention or the length of the detention. However, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

Guilty pleas are another available alternative to reduce pre-trial detention. However, guilty pleas are typically only used in special circumstances. Azerbaijan requires sincere repentance by the accused before a guilty plea can be effective. <ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

The best way to effect change in Azerbaijan legislation is by appealing to the European Court of Human Rights. In the past year a number of appeals have been sent to the Court pertaining to pre-trial detention. After the European Court of Human Rights issued decisions, the Azerbaijani Supreme Court held a special meeting to reevaluate local practices and issued an advisory note to the lower courts requesting the courts to employ alternatives to pre-trial detention.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>

== Georgia ==

The basic principles and procedures regarding criminal prosecution, pre-trial detention and criminal responsibility are regulated by the Constitution of Georgia, Criminal Code of Georgia, and Law on Probation and Code of Criminal Procedure of Georgia.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

The Code of Criminal Procedure of Georgia (CCP) is a legal act which specifically regulates procedure pertaining to pretrial detention and criminal responsibility. The current CCP was passed in 1999 by the Georgian Parliament. Since that date there have been many changes and amendments.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

A new Code of Criminal Procedure will take effect in October 2010.

'''The Constitution of Georgia'''

''Article 18''
(2):Deprivation of liberty or any other kind of restraint of liberty is inadmissible unless there is a court decision.

(3): A person may be detained only by an authorized officer and he/she must be presented to the court no later than 48 hours after arrest. The court must make a decision in the following 24 hours. In the event a court does not make a decision on the arrest or restraint of liberty, the detainee must be immediately released.

(7): A person who was unlawfully detained or arrested may request compensation.

''Article 40''
(1) A person is considered innocent until his/her guilt is proved by a court.
(2) No one shall have to prove his/her innocence. The burden of proof is on the prosecution to show guilt.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''

''Article 10:'' Presumption of Innocence

''Article 159:''
(1) No one may be detained without an order of arrest issued by an authorized judicial body.

3. Arrest as a preventive measure may be condoned only when an individual has committed a crime carrying a sentence of 2 or more years. An individual may not be arrested as a preventive measure if ill, a juvenile, or above the age of 60 if a woman or 65 if a man. Additionally, a pregnant woman or a mother having a child less than a year old may not be arrested as a preventative measure.

''Article 160:''
(1) A criminal prosecutor or an investigator with the permission of a criminal prosecutor is authorized to apply to the court to request an order of arrest. If there is sufficient grounds that the accused will flee, destroy evidence or commit a new crime, the prosecutor is authorized to detain.

''Article 243:''
(1) The accused, his/her legal defender or a criminal prosecutor may submit a claim regarding pre-trial detention and request its termination, change or prolongation. The claim may be submitted only once to the upper instance of the court.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

'''New Code of Criminal Procedure: October 1, 2010'''

Important changes from current code:
*Minimum bail has been raised to 1000 GEL (about 500 USD,
*The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
*Preventative arrest may only be appealed once. One the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The terms reasonable and necessary are not strictly interpreted in accord with the international human rights standards by the Georgian criminal procedure. The Code of Criminal Procedure provides for fixed terms of pre-trial detention. There is no evaluation of the reasonability of detention in each case; therefore the particular circumstances of a case are irrelevant in determining length of detention.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

Georgian criminal legislation does not include a right to a writ of habeas corpus. The absence of effective judicial review of detention may make other procedural guarantees ineffective.

Additionally, there are problems stemming from the lack of independence of the judicial authorities. The judiciary is intended to be an independent authority able to review the legality of detention by the international community. However, in practice, the Georgia judiciary is often governed by forces other than the strict interpretation of the law.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

=== Detainment ===

The minimum length of detention following arrest is 48 hours. During the 48 hours, the court must decide whether to charge the individual with a crime or release. If the court decides to charge the individual, the judge must also set a length for pre-trial detention. Generally an individual is detained for a month initially, which may be extended twice. The first extension may only be for an additional month, but the second may be for two additional months. In total, pre-trial detention should not exceed four months.

Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum an individual may be detained during both pre-trial and trial detention for nine months. If the individual is found not guilty, the individual may request compensation for detention.

Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure. However, there are issues with the granting of bail. In most cases, a prosecutor requests and is granted bail, however, an individual may not be released until at least 50% of the bail is paid. Many accused cannot afford to pay the bail and they remain in custody. Therefore, even though bail is granted many times, in practice bail is not an effective means of reducing pre-trial detention.

Plea Bargaining is also employed to reduce pre-trial detention. Many times, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. Plea Bargains have been available since 2005 in the Georgian Code of Criminal Procedure.<ref>International Bridges to Justice: Georgian Justice Maker, July 2010</ref>

== Indonesia ==

According to Article 20-21 of the Indonesia Criminal Procedure Law, pretrial detention can only be conducted based on two reasons:

* Subjective: There is a danger the suspect will:
** flee,
** destroy or remove evidence, and/or
** repeat the crime.

* Objective: individual committed a crime that is charged with 5 years imprisonment or more; or for a specific crime that carries a sentence of less than 5 years imprisonment but is based on Article 21: such as maltreatment, fraud, embezzlement, etc.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detention should be carried out if there is initial evidence; and the suspect should receive the arrest warrant; and his/her family receives a receipt of the warrant.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, it has never been clarified regarding the standard. Additionally it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

=== Detainment ===

During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days.

During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Therefore, the total average period of pretrial detention is 110 days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill or has been charged with a crime subject to 9 or more years in prison.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

Detainees may be released on bail or personal recognizance by the law, however, in practice judges rarely release accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are not other procedures available to challenge pre-trial detention.<ref>International Bridges to Justice: Indonesian Justice Maker, July 2010</ref>

== Philippines ==

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

Hence, detention is lawful (done only upon lawful order from a court with jurisdiction over the case) and reasonable (upon a finding of probable cause, i.e., that a crime was committed and the accused probably committed it). As to necessary, detention is often the general rule when an Indictment is filed. Authorities no longer determine whether or not detention is actually necessary.

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===

Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Discrepancy between country's laws/codes, the international standards and practical implementation ===

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

=== Detainment ===

Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance. In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative of family member is able to file a writ of habeas corpus.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref> Additionally, a Motion to Quash the arrest warrant is available if there is evidence of irregularity or illegality in procedure. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is villiga conciliation which is required to small crimes committed in a barangay (village).<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

== Rwanda ==

=== Domestic Code ===

''Organic Genocide Law:'' contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Alternative Justice Practices ===

''Gisovu Project:'' the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

''Gacaca Courts:'' grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

=== Courts ===

Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.<ref>US State Department: Country Reports. Rwanda, 21 June 2010.</ref>

= Practical Tips for Lawyers =

When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.

# How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
# How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
# How long has your client been held and what is the average period of pretrial detention there?
# Does your judicial system permit prisoners to be released on bail or their personal recognizance?
## If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
## How can your client obtain bail?
# If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client? Examples:
## Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
## Motion to Dismiss for lack of speedy trial
## Dismissal of charges in the interest of justice
## Nullity Procedure
## Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?

Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

= Notes =
<references/>

United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)

2010-07-13T09:54:40Z

Mmurray:

''Adopted by General Assembly resolution 45/110 of 14 December 1990''

'''I. General principles'''

'''1. Fundamental aims'''

1.1 The present Standard Minimum Rules provide a set of basic principles to promote the use of non-custodial measures, as well as minimum safeguards for persons subject to alternatives to imprisonment.

1.2 The Rules are intended to promote greater community involvement in the management of criminal justice, specifically in the treatment of offenders, as well as to promote among offenders a sense of responsibility towards society.

1.3 The Rules shall be implemented taking into account the political, economic, social and cultural conditions of each country and the aims and objectives of its criminal justice system.

1.4 When implementing the Rules, Member States shall endeavour to ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention.

1.5 Member States shall develop non-custodial measures within their legal systems to provide other options, thus reducing the use of imprisonment, and to rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender.

'''2. The scope of non-custodial measures'''

2.1 The relevant provisions of the present Rules shall be applied to all persons subject to prosecution, trial or the execution of a sentence, at all stages of the administration of criminal justice. For the purposes of the Rules, these persons are referred to as "offenders", irrespective of whether they are suspected, accused or sentenced.

2.2 The Rules shall be applied without any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth or other status.

2.3 In order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions. The number and types of non-custodial measures available should be determined in such a way so that consistent sentencing remains possible.

2.4 The development of new non-custodial measures should be encouraged and closely monitored and their use systematically evaluated.

2.5 Consideration shall be given to dealing with offenders in the community avoiding as far as possible resort to formal proceedings or trial by a court, in accordance with legal safeguards and the rule of law.

2.6 Non-custodial measures should be used in accordance with the principle of minimum intervention.

2.7 The use of non-custodial measures should be part of the movement towards depenalization and decriminalization instead of interfering with or delaying efforts in that direction.

'''3 . Legal safeguards'''

3.1 The introduction, definition and application of non-custodial measures shall be prescribed by law.

3.2 The selection of a non-custodial measure shall be based on an assessment of established criteria in respect of both the nature and gravity of the offence and the personality, background of the offender, the purposes of sentencing and the rights of victims.

3.3 Discretion by the judicial or other competent independent authority shall be exercised at all stages of the proceedings by ensuring full accountability and only in accordance with the rule of law.

3.4 Non-custodial measures imposing an obligation on the offender, applied before or instead of formal proceedings or trial , shall require the offender's consent.

3.5 Decisions on the imposition of non-custodial measures shall be subject to review by a judicial or other competent independent authority, upon application by the offender.

3.6 The offender shall be entitled to make a request or complaint to a judicial or other competent independent authority on matters affecting his or her individual rights in the implementation of non-custodial measures.

3.7 Appropriate machinery shall be provided for the recourse and, if possible, redress of any grievance related to non-compliance with internationally recognized human rights.

3.8 Non-custodial measures shall not involve medical or psychological experimentation on, or undue risk of physical or mental injury to, the offender.

3.9 The dignity of the offender subject to non-custodial measures shall be protected at all times.

3.10 In the implementation of non-custodial measures, the offender's rights shall not be restricted further than was authorized by the competent authority that rendered the original decision.

3.11 In the application of non-custodial measures, the offender's right to privacy shall be respected, as shall be the right to privacy of the offender's family.

3.12 The offender's personal records shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the offender's case or to other duly authorized persons.

'''4 . Saving clause'''

4.1 Nothing in these Rules shall be interpreted as precluding the application of the Standard Minimum Rules for the Treatment of Prisoners, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment or any other human rights instruments and standards recognized by the international community and relating to the treatment of offenders and the protection of their basic human rights.

'''II. Pre-trial stage'''

'''5. Pre-trial dispositions'''

5.1 Where appropriate and compatible with the legal system, the police, the prosecution service or other agencies dealing with criminal cases should be empowered to discharge the offender if they consider that it is not necessary to proceed with the case for the protection of society, crime prevention or the promotion of respect for the law and the rights of victims. For the purpose of deciding upon the appropriateness of discharge or determination of proceedings, a set of established criteria shall be developed within each legal system. For minor cases the prosecutor may impose suitable non-custodial measures, as appropriate.

'''6. Avoidance of pre-trial detention'''

6.1 Pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.

6.2 Alternatives to pre-trial detention shall be employed at as early a stage as possible. Pre-trial detention shall last no longer than necessary to achieve the objectives stated under rule 5.1 and shall be administered humanely and with respect for the inherent dignity of human beings.

6.3 The offender shall have the right to appeal to a judicial or other competent independent authority in cases where pre-trial detention is employed.

'''III. Trial and sentencing stage'''

'''7. Social inquiry reports'''

7.1 If the possibility of social inquiry reports exists, the judicial authority may avail itself of a report prepared by a competent, authorized official or agency. The report should contain social information on the offender that is relevant to the person's pattern of offending and current offences. It should also contain information and recommendations that are relevant to the sentencing procedure. The report shall be factual, objective and unbiased, with any expression of opinion clearly identified.

'''8. Sentencing dispositions'''

8.1 The judicial authority, having at its disposal a range of non-custodial measures, should take into consideration in making its decision the rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate.

8.2 Sentencing authorities may dispose of cases in the following ways:

( a ) Verbal sanctions, such as admonition, reprimand and warning;

( b ) Conditional discharge;

( c ) Status penalties;

( d ) Economic sanctions and monetary penalties, such as fines and day-fines;

( e ) Confiscation or an expropriation order;

( f ) Restitution to the victim or a compensation order;

( g ) Suspended or deferred sentence;

( h ) Probation and judicial supervision;

( i ) A community service order;

( j ) Referral to an attendance centre;

( k ) House arrest;

( l ) Any other mode of non-institutional treatment;

( m ) Some combination of the measures listed above.

'''IV. Post-sentencing stage'''

'''9 . Post-sentencing dispositions'''

9.1 The competent authority shall have at its disposal a wide range of post-sentencing alternatives in order to avoid institutionalization and to assist offenders in their early reintegration into society.

9.2 Post-sentencing dispositions may include:

( a ) Furlough and half-way houses;

( b ) Work or education release;

( c ) Various forms of parole;

( d ) Remission;

( e ) Pardon.

9.3 The decision on post-sentencing dispositions, except in the case of pardon, shall be subject to review by a judicial or other competent independent authority, upon application of the offender.

9.4 Any form of release from an institution to a non-custodial programme shall be considered at the earliest possible stage.

'''V. Implementation of non-custodial measures'''

'''10. Supervision'''

10.1 The purpose of supervision is to reduce reoffending and to assist the offender's integration into society in a way which minimizes the likelihood of a return to crime.

10.2 If a non-custodial measure entails supervision, the latter shall be carried out by a competent authority under the specific conditions prescribed by law.

10.3 Within the framework of a given non-custodial measure, the most suitable type of supervision and treatment should be determined for each individual case aimed at assisting the offender to work on his or her offending. Supervision and treatment should be periodically reviewed and adjusted as necessary.

10.4 Offenders should, when needed, be provided with psychological, social and material assistance and with opportunities to strengthen links with the community and facilitate their reintegration into society.

'''11 . Duration'''

11.1 The duration of a non-custodial measure shall not exceed the period established by the competent authority in accordance with the law.

11.2 Provision may be made for early termination of the measure if the offender has responded favourably to it.

'''12. Conditions'''

12.1 If the competent authority shall determine the conditions to be observed by the offender, it should take into account both the needs of society and the needs and rights of the offender and the victim.

12.2 The conditions to be observed shall be practical, precise and as few as possible, and be aimed at reducing the likelihood of an offender relapsing into criminal behaviour and of increasing the offender's chances of social integration, taking into account the needs of the victim.

12.3 At the beginning of the application of a non-custodial measure, the offender shall receive an explanation, orally and in writing, of the conditions governing the application of the measure, including the offender's obligations and rights.

12.4 The conditions may be modified by the competent authority under the established statutory provisions, in accordance with the progress made by the offender.

'''13. Treatment process'''

13.1 Within the framework of a given non-custodial measure, in appropriate cases, various schemes, such as case-work, group therapy, residential programmes and the specialized treatment of various categories of offenders, should be developed to meet the needs of offenders more effectively.

13.2 Treatment should be conducted by professionals who have suitable training and practical experience.

13.3 When it is decided that treatment is necessary, efforts should be made to understand the offender's background, personality, aptitude, intelligence, values and, especially, the circumstances leading to the commission of the offence.

13.4 The competent authority may involve the community and social support systems in the application of non-custodial measures.

13.5 Case-load assignments shall be maintained as far as practicable at a manageable level to ensure the effective implementation of treatment programmes.

13.6 For each offender, a case record shall be established and maintained by the competent authority.

'''14. Discipline and breach of conditions'''

14.1 A breach of the conditions to be observed by the offender may result in a modification or revocation of the non-custodial measure.

14.2 The modification or revocation of the non-custodial measure shall be made by the competent authority; this shall be done only after a careful examination of the facts adduced by both the supervising officer and the offender.

14.3 The failure of a non-custodial measure should not automatically lead to the imposition of a custodial measure.

14.4 In the event of a modification or revocation of the non-custodial measure, the competent authority shall attempt to establish a suitable alternative non-custodial measure. A sentence of imprisonment may be imposed only in the absence of other suitable alternatives.

14.5 The power to arrest and detain the offender under supervision in cases where there is a breach of the conditions shall be prescribed by law.

14.6 Upon modification or revocation of the non-custodial measure, the offender shall have the right to appeal to a judicial or other competent independent authority.

'''VI. Staff'''

'''15. Recruitment'''

15.1 There shall be no discrimination in the recruitment of staff on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth or other status. The policy regarding staff recruitment should take into consideration national policies of affirmative action and reflect the diversity of the offenders to be supervised.

15.2 Persons appointed to apply non-custodial measures should be personally suitable and, whenever possible, have appropriate professional training and practical experience. Such qualifications shall be clearly specified.

15.3 To secure and retain qualified professional staff, appropriate service status, adequate salary and benefits commensurate with the nature of the work should be ensured and ample opportunities should be provided for professional growth and career development.

'''16 . Staff training'''

16.1 The objective of training shall be to make clear to staff their responsibilities with regard to rehabilitating the offender, ensuring the offender's rights and protecting society. Training should also give staff an understanding of the need to cooperate in and coordinate activities with the agencies concerned.

16.2 Before entering duty, staff shall be given training that includes instruction on the nature of non-custodial measures, the purposes of supervision and the various modalities of the application of non-custodial measures.

16.3 After entering duty, staff shall maintain and improve their knowledge and professional capacity by attending in-service training and refresher courses. Adequate facilities shall be made available for that purpose.

'''VII. Volunteers and other community resources"

'''17. Public participation'''

17.1 Public participation should be encouraged as it is a major resource and one of the most important factors in improving ties between offenders undergoing non-custodial measures and the family and community. It should complement the efforts of the criminal justice administration.

17.2 Public participation should be regarded as an opportunity for members of the community to contribute to the protection of their society.

'''18. Public understanding and cooperation'''

18.1 Government agencies, the private sector and the general public should be encouraged to support voluntary organizations that promote noncustodial measures.

18.2 Conferences, seminars, symposia and other activities should be regularly organized to stimulate awareness of the need for public participation in the application of non-custodial measures.

18.3 All forms of the mass media should be utilized to help to create a constructive public attitude, leading to activities conducive to a broader application of non-custodial treatment and the social integration of offenders.

18.4 Every effort should be made to inform the public of the importance of its role in the implementation of non-custodial measures.

'''19. Volunteers'''

19.1 Volunteers shall be carefully screened and recruited on the basis of their aptitude for and interest in the work involved. They shall be properly trained for the specific responsibilities to be discharged by them and shall have access to support and counselling from, and the opportunity to consult with, the competent authority.

19.2 Volunteers should encourage offenders and their families to develop meaningful ties with the community and a broader sphere of contact by providing counselling and other appropriate forms of assistance according to their capacity and the offenders' needs.

19.3 Volunteers shall be insured against accident, injury and public liability when carrying out their duties. They shall be reimbursed for authorized expenditures incurred in the course of their work. Public recognition should be extended to them for the services they render for the well-being of the community.

'''VIII. Research, planning, policy formulation and evalution'''

'''20. Research and planning'''

20.1 As an essential aspect of the planning process, efforts should be made to involve both public and private bodies in the organization and promotion of research on the non-custodial treatment of offenders.

20.2 Research on the problems that confront clients, practitioners, the community and policy-makers should be carried out on a regular basis.

20.3 Research and information mechanisms should be built into the criminal justice system for the collection and analysis of data and statistics on the implementation of non-custodial treatment for offenders.

'''21. Policy formulation and programme development'''

21.1 Programmes for non-custodial measures should be systematically planned and implemented as an integral part of the criminal justice system within the national development process.

21.2 Regular evaluations should be carried out with a view to implementing non-custodial measures more effectively.

21.3 Periodic reviews should be concluded to assess the objectives, functioning and effectiveness of non-custodial measures.

'''22. Linkages with relevant agencies and activities'''

22.1 Suitable mechanisms should be evolved at various levels to facilitate the establishment of linkages between services responsible for non-custodial measures, other branches of the criminal justice system, social development and welfare agencies, both governmental and non-governmental, in such fields as health, housing, education and labour, and the mass media.

'''23. International cooperation'''

23.1 Efforts shall be made to promote scientific cooperation between countries in the field of non-institutional treatment. Research, training, technical assistance and the exchange of information among Member States on non-custodial measures should be strengthened, through the United Nations institutes for the prevention of crime and the treatment of offenders, in close collaboration with the Crime Prevention and Criminal Justice Branch of the Centre for Social Development and Humanitarian Affairs of the United Nations Secretariat.

23.2 Comparative studies and the harmonization of legislative provisions should be furthered to expand the range of non-institutional options and facilitate their application across national frontiers, in accordance with the Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released

United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)

2010-07-13T09:45:33Z

Mmurray: Created page with '''Adopted by General Assembly resolution 45/110 of 14 December 1990'' '''I. General principles''' '''1. Fundamental aims''' 1.1 The present Standard Minimum Rules provide a s�'

''Adopted by General Assembly resolution 45/110 of 14 December 1990''

'''I. General principles'''

'''1. Fundamental aims'''

1.1 The present Standard Minimum Rules provide a set of basic principles to promote the use of non-custodial measures, as well as minimum safeguards for persons subject to alternatives to imprisonment.

1.2 The Rules are intended to promote greater community involvement in the management of criminal justice, specifically in the treatment of offenders, as well as to promote among offenders a sense of responsibility towards society.

1.3 The Rules shall be implemented taking into account the political, economic, social and cultural conditions of each country and the aims and objectives of its criminal justice system.

1.4 When implementing the Rules, Member States shall endeavour to ensure a proper balance between the rights of individual offenders, the rights of victims, and the concern of society for public safety and crime prevention.

1.5 Member States shall develop non-custodial measures within their legal systems to provide other options, thus reducing the use of imprisonment, and to rationalize criminal justice policies, taking into account the observance of human rights, the requirements of social justice and the rehabilitation needs of the offender.

'''2. The scope of non-custodial measures'''

2.1 The relevant provisions of the present Rules shall be applied to all persons subject to prosecution, trial or the execution of a sentence, at all stages of the administration of criminal justice. For the purposes of the Rules, these persons are referred to as "offenders", irrespective of whether they are suspected, accused or sentenced.

2.2 The Rules shall be applied without any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth or other status.

2.3 In order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions. The number and types of non-custodial measures available should be determined in such a way so that consistent sentencing remains possible.

2.4 The development of new non-custodial measures should be encouraged and closely monitored and their use systematically evaluated.

2.5 Consideration shall be given to dealing with offenders in the community avoiding as far as possible resort to formal proceedings or trial by a court, in accordance with legal safeguards and the rule of law.

2.6 Non-custodial measures should be used in accordance with the principle of minimum intervention.

2.7 The use of non-custodial measures should be part of the movement towards depenalization and decriminalization instead of interfering with or delaying efforts in that direction.

'''3 . Legal safeguards'''

3.1 The introduction, definition and application of non-custodial measures shall be prescribed by law.

3.2 The selection of a non-custodial measure shall be based on an assessment of established criteria in respect of both the nature and gravity of the offence and the personality, background of the offender, the purposes of sentencing and the rights of victims.

3.3 Discretion by the judicial or other competent independent authority shall be exercised at all stages of the proceedings by ensuring full accountability and only in accordance with the rule of law.

3.4 Non-custodial measures imposing an obligation on the offender, applied before or instead of formal proceedings or trial , shall require the offender's consent.

3.5 Decisions on the imposition of non-custodial measures shall be subject to review by a judicial or other competent independent authority, upon application by the offender.

3.6 The offender shall be entitled to make a request or complaint to a judicial or other competent independent authority on matters affecting his or her individual rights in the implementation of non-custodial measures.

3.7 Appropriate machinery shall be provided for the recourse and, if possible, redress of any grievance related to non-compliance with internationally recognized human rights.

3.8 Non-custodial measures shall not involve medical or psychological experimentation on, or undue risk of physical or mental injury to, the offender.

3.9 The dignity of the offender subject to non-custodial measures shall be protected at all times.

3.10 In the implementation of non-custodial measures, the offender's rights shall not be restricted further than was authorized by the competent authority that rendered the original decision.

3.11 In the application of non-custodial measures, the offender's right to privacy shall be respected, as shall be the right to privacy of the offender's family.

3.12 The offender's personal records shall be kept strictly confidential and closed to third parties. Access to such records shall be limited to persons directly concerned with the disposition of the offender's case or to other duly authorized persons.

'''4 . Saving clause'''

4.1 Nothing in these Rules shall be interpreted as precluding the application of the Standard Minimum Rules for the Treatment of Prisoners, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment or any other human rights instruments and standards recognized by the international community and relating to the treatment of offenders and the protection of their basic human rights.

'''II. Pre-trial stage'''

'''5. Pre-trial dispositions'''

5.1 Where appropriate and compatible with the legal system, the police, the prosecution service or other agencies dealing with criminal cases should be empowered to discharge the offender if they consider that it is not necessary to proceed with the case for the protection of society, crime prevention or the promotion of respect for the law and the rights of victims. For the purpose of deciding upon the appropriateness of discharge or determination of proceedings, a set of established criteria shall be developed within each legal system. For minor cases the prosecutor may impose suitable non-custodial measures, as appropriate.

'''6. Avoidance of pre-trial detention'''

6.1 Pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.

6.2 Alternatives to pre-trial detention shall be employed at as early a stage as possible. Pre-trial detention shall last no longer than necessary to achieve the objectives stated under rule 5.1 and shall be administered humanely and with respect for the inherent dignity of human beings.

6.3 The offender shall have the right to appeal to a judicial or other competent independent authority in cases where pre-trial detention is employed.

'''III. Trial and sentencing stage

7. Social inquiry reports'''

7.1 If the possibility of social inquiry reports exists, the judicial authority may avail itself of a report prepared by a competent, authorized official or agency. The report should contain social information on the offender that is relevant to the person's pattern of offending and current offences. It should also contain information and recommendations that are relevant to the sentencing procedure. The report shall be factual, objective and unbiased, with any expression of opinion clearly identified.

'''8. Sentencing dispositions'''

8.1 The judicial authority, having at its disposal a range of non-custodial measures, should take into consideration in making its decision the rehabilitative needs of the offender, the protection of society and the interests of the victim, who should be consulted whenever appropriate.

8.2 Sentencing authorities may dispose of cases in the following ways:

( a ) Verbal sanctions, such as admonition, reprimand and warning;

( b ) Conditional discharge;

( c ) Status penalties;

( d ) Economic sanctions and monetary penalties, such as fines and day-fines;

( e ) Confiscation or an expropriation order;

( f ) Restitution to the victim or a compensation order;

( g ) Suspended or deferred sentence;

( h ) Probation and judicial supervision;

( i ) A community service order;

( j ) Referral to an attendance centre;

( k ) House arrest;

( l ) Any other mode of non-institutional treatment;

( m ) Some combination of the measures listed above.

'''IV. Post-sentencing stage

9 . Post-sentencing dispositions'''

9.1 The competent authority shall have at its disposal a wide range of post-sentencing alternatives in order to avoid institutionalization and to assist offenders in their early reintegration into society.

9.2 Post-sentencing dispositions may include:

( a ) Furlough and half-way houses;

( b ) Work or education release;

( c ) Various forms of parole;

( d ) Remission;

( e ) Pardon.

9.3 The decision on post-sentencing dispositions, except in the case of pardon, shall be subject to review by a judicial or other competent independent authority, upon application of the offender.

9.4 Any form of release from an institution to a non-custodial programme shall be considered at the earliest possible stage.

'''V. Implementation of non-custodial measures

10. Supervision'''

10.1 The purpose of supervision is to reduce reoffending and to assist the offender's integration into society in a way which minimizes the likelihood of a return to crime.

10.2 If a non-custodial measure entails supervision, the latter shall be carried out by a competent authority under the specific conditions prescribed by law.

10.3 Within the framework of a given non-custodial measure, the most suitable type of supervision and treatment should be determined for each individual case aimed at assisting the offender to work on his or her offending. Supervision and treatment should be periodically reviewed and adjusted as necessary.

10.4 Offenders should, when needed, be provided with psychological, social and material assistance and with opportunities to strengthen links with the community and facilitate their reintegration into society.

'''11 . Duration'''

11.1 The duration of a non-custodial measure shall not exceed the period established by the competent authority in accordance with the law.

11.2 Provision may be made for early termination of the measure if the offender has responded favourably to it.

'''12. Conditions'''

12.1 If the competent authority shall determine the conditions to be observed by the offender, it should take into account both the needs of society and the needs and rights of the offender and the victim.

12.2 The conditions to be observed shall be practical, precise and as few as possible, and be aimed at reducing the likelihood of an offender relapsing into criminal behaviour and of increasing the offender's chances of social integration, taking into account the needs of the victim.

12.3 At the beginning of the application of a non-custodial measure, the offender shall receive an explanation, orally and in writing, of the conditions governing the application of the measure, including the offender's obligations and rights.

12.4 The conditions may be modified by the competent authority under the established statutory provisions, in accordance with the progress made by the offender.

'''13. Treatment process'''

13.1 Within the framework of a given non-custodial measure, in appropriate cases, various schemes, such as case-work, group therapy, residential programmes and the specialized treatment of various categories of offenders, should be developed to meet the needs of offenders more effectively.

13.2 Treatment should be conducted by professionals who have suitable training and practical experience.

13.3 When it is decided that treatment is necessary, efforts should be made to understand the offender's background, personality, aptitude, intelligence, values and, especially, the circumstances leading to the commission of the offence.

13.4 The competent authority may involve the community and social support systems in the application of non-custodial measures.

13.5 Case-load assignments shall be maintained as far as practicable at a manageable level to ensure the effective implementation of treatment programmes.

13.6 For each offender, a case record shall be established and maintained by the competent authority.

'''14. Discipline and breach of conditions'''

14.1 A breach of the conditions to be observed by the offender may result in a modification or revocation of the non-custodial measure.

14.2 The modification or revocation of the non-custodial measure shall be made by the competent authority; this shall be done only after a careful examination of the facts adduced by both the supervising officer and the offender.

14.3 The failure of a non-custodial measure should not automatically lead to the imposition of a custodial measure.

14.4 In the event of a modification or revocation of the non-custodial measure, the competent authority shall attempt to establish a suitable alternative non-custodial measure. A sentence of imprisonment may be imposed only in the absence of other suitable alternatives.

14.5 The power to arrest and detain the offender under supervision in cases where there is a breach of the conditions shall be prescribed by law.

14.6 Upon modification or revocation of the non-custodial measure, the offender shall have the right to appeal to a judicial or other competent independent authority.

'''VI. Staff

15. Recruitment'''

15.1 There shall be no discrimination in the recruitment of staff on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth or other status. The policy regarding staff recruitment should take into consideration national policies of affirmative action and reflect the diversity of the offenders to be supervised.

15.2 Persons appointed to apply non-custodial measures should be personally suitable and, whenever possible, have appropriate professional training and practical experience. Such qualifications shall be clearly specified.

15.3 To secure and retain qualified professional staff, appropriate service status, adequate salary and benefits commensurate with the nature of the work should be ensured and ample opportunities should be provided for professional growth and career development.

'''16 . Staff training'''

16.1 The objective of training shall be to make clear to staff their responsibilities with regard to rehabilitating the offender, ensuring the offender's rights and protecting society. Training should also give staff an understanding of the need to cooperate in and coordinate activities with the agencies concerned.

16.2 Before entering duty, staff shall be given training that includes instruction on the nature of non-custodial measures, the purposes of supervision and the various modalities of the application of non-custodial measures.

16.3 After entering duty, staff shall maintain and improve their knowledge and professional capacity by attending in-service training and refresher courses. Adequate facilities shall be made available for that purpose.

'''VII. Volunteers and other community resources

17. Public participation'''

17.1 Public participation should be encouraged as it is a major resource and one of the most important factors in improving ties between offenders undergoing non-custodial measures and the family and community. It should complement the efforts of the criminal justice administration.

17.2 Public participation should be regarded as an opportunity for members of the community to contribute to the protection of their society.

'''18. Public understanding and cooperation'''

18.1 Government agencies, the private sector and the general public should be encouraged to support voluntary organizations that promote noncustodial measures.

18.2 Conferences, seminars, symposia and other activities should be regularly organized to stimulate awareness of the need for public participation in the application of non-custodial measures.

18.3 All forms of the mass media should be utilized to help to create a constructive public attitude, leading to activities conducive to a broader application of non-custodial treatment and the social integration of offenders.

18.4 Every effort should be made to inform the public of the importance of its role in the implementation of non-custodial measures.

'''19. Volunteers'''

19.1 Volunteers shall be carefully screened and recruited on the basis of their aptitude for and interest in the work involved. They shall be properly trained for the specific responsibilities to be discharged by them and shall have access to support and counselling from, and the opportunity to consult with, the competent authority.

19.2 Volunteers should encourage offenders and their families to develop meaningful ties with the community and a broader sphere of contact by providing counselling and other appropriate forms of assistance according to their capacity and the offenders' needs.

19.3 Volunteers shall be insured against accident, injury and public liability when carrying out their duties. They shall be reimbursed for authorized expenditures incurred in the course of their work. Public recognition should be extended to them for the services they render for the well-being of the community.

'''VIII. Research, planning, policy formulation and evalution

20. Research and planning'''

20.1 As an essential aspect of the planning process, efforts should be made to involve both public and private bodies in the organization and promotion of research on the non-custodial treatment of offenders.

20.2 Research on the problems that confront clients, practitioners, the community and policy-makers should be carried out on a regular basis.

20.3 Research and information mechanisms should be built into the criminal justice system for the collection and analysis of data and statistics on the implementation of non-custodial treatment for offenders.

'''21. Policy formulation and programme development'''

21.1 Programmes for non-custodial measures should be systematically planned and implemented as an integral part of the criminal justice system within the national development process.

21.2 Regular evaluations should be carried out with a view to implementing non-custodial measures more effectively.

21.3 Periodic reviews should be concluded to assess the objectives, functioning and effectiveness of non-custodial measures.

'''22. Linkages with relevant agencies and activities'''

22.1 Suitable mechanisms should be evolved at various levels to facilitate the establishment of linkages between services responsible for non-custodial measures, other branches of the criminal justice system, social development and welfare agencies, both governmental and non-governmental, in such fields as health, housing, education and labour, and the mass media.

'''23. International cooperation'''

23.1 Efforts shall be made to promote scientific cooperation between countries in the field of non-institutional treatment. Research, training, technical assistance and the exchange of information among Member States on non-custodial measures should be strengthened, through the United Nations institutes for the prevention of crime and the treatment of offenders, in close collaboration with the Crime Prevention and Criminal Justice Branch of the Centre for Social Development and Humanitarian Affairs of the United Nations Secretariat.

23.2 Comparative studies and the harmonization of legislative provisions should be furthered to expand the range of non-institutional options and facilitate their application across national frontiers, in accordance with the Model Treaty on the Transfer of Supervision of Offenders Conditionally Sentenced or Conditionally Released

International Law

2010-07-13T09:35:44Z

Mmurray: /* Prisoners' Rights and Sentencing Standards */

==Courts==
*[[International Court of Justice]] (The Hague, Netherlands)
*[[International Criminal Court]] (The Hague, Netherlands)

==Treaties==
===Background===
Since the United Nations was founded in 1945, the various states have drafted several tools to facilitate international law. Several of those international tools are listed here, with a focus on criminal justice and prisoners' rights. Some of these tools are called "basic principals" while others are called "covenants". Generally speaking, principals are advisory, while covenants are binding on the states. The [[International Court of Justice]] provides remedies for violations of some of these covenants.

===Torture===

* [[Convention Against Torture]] and Other Cruel Inhuman or Degrading
Treatment or Punishment
* [[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]

===Prisoners' Rights and Sentencing Standards===

* [[Basic Principles for the Treatment of Prisoners]]
* [[Standard Minimum Rules for Treatment of Prisoners]]
* [[United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)]]

===Other Important Treaties===
*[[Convention on the Prevention and Punishment of the Crime of Genocide]]
* [[International Covenant on Civil and Political Rights]]
* [[Rome Statute of the International Criminal Court]]
* [[Universal Declaration of Human Rights]]
* [[UN Basic Principles on the Independence of the Judiciary Power]]

Representing Victims of Torture

2010-07-02T12:47:39Z

Mmurray: /* Other Treaties that Prohibit Torture */

Representing Victims of Torture

2010-07-02T12:15:16Z

Mmurray: /* Identifying Victims of Torture */

Representing Victims of Torture

2010-07-01T15:04:27Z

Mmurray: /* 4. State action */

Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases

2010-07-01T14:39:44Z

Mmurray: Created page with 'In order to standardize legal practices and promote fairness in the execution of the law, these rules are established in accordance with the Criminal Procedure Law and relevant j�'

In order to standardize legal practices and promote fairness in the execution of the law, these
rules are established in accordance with the Criminal Procedure Law and relevant judicial
interpretations and in combination with the actual work of the people's courts, people's
procuratorates, public security organs, state security organs, and judicial administration organs in
handling criminal cases.

Article 1 The category of illegal oral evidence includes statements by criminal suspects or
defendants obtained through illegal means such as coerced confession as well as witness
testimony or victim statements obtained through illegal means such as use of violence or threats.

Article 2 Oral evidence that has been determined to be illegal in accordance with the law shall be
excluded and may not serve as the basis for conviction.

Article 3 In the course of examining whether to approve arrest or initiate prosecution, the
people's procuratorates shall exclude illegal oral evidence in accordance with the law and may not
use it as the basis for approving arrest or initiating prosecution.

Article 4 If, between the time that a copy of the indictment has been delivered and the time the
trial commences, a defendant alleges that his or her pretrial confession was obtained illegally, he or
she should submit a written motion to the people's court. If the defendant has real difficulties with
writing, he or she may make the accusation orally to be recorded by a people's court employee or
the defendant's defense counsel, a copy of which the defendant shall sign or affix with his or her
thumbprint.
The people's court shall deliver the defendant's written motion or record of accusation to the
people's procuratorate prior to the commencement of the trial.

Article 5 If, prior to commencement of the trial or during the trial, a defendant or his or her
defense counsel alleges that the defendant's pretrial confession was obtained illegally, the court
should conduct an investigation in court immediately following the prosecutor's recitation of the
indictment.
If, prior to the conclusion of courtroom debate, the defendant or his or her defense counsel
alleges that the defendant's pretrial confession was obtained illegally, the court shall also conduct
an investigation.

Article 6 If a defendant or his or her defense counsel alleges that the defendant's pretrial
confession was obtained illegally, the court shall request that he or she provide relevant leads or
evidence with respect to the alleged illegal obtaining of evidence, such as the person(s), time,
place, manner, and content.

Article 7 If, upon investigation, the court has questions about the legality of the way the
defendant's pretrial confession was obtained, the prosecutor shall provide interrogation transcripts,
original audio or video recordings of the interrogation or other evidence and request that the court
notify other individuals present at the interrogation or other witnesses to provide testimony before
the court. If it is still not possible to eliminate suspicion of coerced confession, [the procuratorate
shall] request that the court notify the interrogator(s) to provide testimony before the court and
confirm that the confession was obtained legally. If the prosecutor cannot provide evidence at the
time of the hearing, he or she may recommend that the court postpone the trial proceedings in
accordance with Article 165 of the Criminal Procedure Law.
Having been notified in accordance with the law, interrogators or other individuals shall testify
before the court.
If the prosecutor submits an officially sealed [written] explanation that has not been signed or
sealed by the interrogator(s) concerned, the document may not serve as evidence that the
evidence was obtained legally.
Prosecution and defense may cross-examine evidence and carry out debate with regard to the
question of whether the defendant's pretrial confession was obtained legally.

Article 8 If the court has questions about the evidence submitted by either the prosecution or
defense, it may adjourn the proceedings and conduct investigation and verification of the evidence.
If necessary, the court may notify the procurator or defense counsel to be present.

Article 9 If, in the course of the trial, the prosecutor recommends postponement of the trial
proceedings in order to submit new evidence or conduct additional investigation, the court should
agree.
If the defendant or his or her defense counsel requests [that the court] notify an interrogator,
other individuals present at the time of interrogation, or other witnesses to appear in court and the
court determines it to be necessary to do so, the court may announce postponement of the trial
proceedings.

Article 10 Following the court's investigation, the defendant's pretrial confession may be read in
court and subjected to cross-examination under one of the following circumstances:
(1) The defendant or his or her defense counsel do not provide leads or evidence of illegally
obtained evidence;
(2) The defendant or his or her defense counsel has provided leads or evidence of illegally
obtained evidence, [but] the court has no questions about the legality of the way the defendant's
pretrial confession was obtained;
(3) The prosecutor provides credible and sufficient evidence that is able to eliminate
[questions about whether] the defendant's pretrial confession was obtained illegally.
A defendant's pretrial confession that is read in court should be considered together with the
defendant's statement in court and other evidence before determining whether it may serve as the
basis for conviction.

Article 11 If the prosecutor does not provide evidence to confirm the legality of the defendant's
pretrial confession or the evidence provided is not credible or sufficient enough, that confession
may not serve as a basis for conviction.

Article 12 If a defendant or his or her defense counsel alleges that the defendant's pretrial
confession was obtained illegally and the people's court of first instance does not investigate [the
allegation] and uses the defendant's pretrial confession as a basis for conviction, the people's court
of second instance shall conduct an investigation into whether the defendant's pretrial confession
was obtained legally. If the procurator does not provide evidence to confirm [legality] or the
evidence provided is not credible or sufficient enough, the defendant's confession may not be used
as a basis for conviction.

Article 13 If, in the course of the trial, the procurator, the defendant, or his or her defense counsel
alleges that written testimony of a witness who has not appeared in court or a written statement by
a victim who has not appeared in court was obtained illegally, the party who submitted the evidence
shall verify that the evidence was obtained legally.
With regard to the evidence mentioned in the preceding paragraph, the court should carry out
an investigation with reference to the relevant provisions of these rules.

Article 14 If material or documentary evidence is obtained in a manner that clearly violates the
law and may have an impact on the fairness of an adjudication, redress or some reasonable
explanation should be made, otherwise that material or documentary evidence may not serve as a
basis for conviction.

Article 15
These rules are effective from July 1, 2010.

Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases

2010-07-01T14:33:32Z

Mmurray:

In order to handle death penalty cases, punish crime, and protect human rights with fairness
and caution and in accordance with the law, these rules are established in accordance with the
provisions of the Criminal Procedure Law of the PRC and other relevant legal provisions and in
combination with legal practice.

I.General Provisions

Article 1 The Criminal Law and Criminal Procedure Law must be strictly implemented in handling
death penalty cases in order to ensure the cases' quality and that the facts are clear, the evidence
is credible and sufficient, procedures are legal, and the law is applied correctly.

Article 2
The facts used to determine guilt in a case must be based on evidence.

Article 3 [Police] investigators, procurators, and judicial officers shall stringently obey legal
procedure and fully and objectively collect, examine, verify, and make determinations about
evidence.

Article 4 Only evidence that has been examined and verified to be true through an investigation
process in court involving presentation, identification, and cross-examination may be used as a
basis for conviction and determining sentence.

Article 5 In death penalty cases, determination of the facts of the defendant's crime must be
based on credible, abundant evidence.
Credible, abundant evidence means:
(1) All of the facts used to convict and determine sentence are proven by evidence;
(2) Each item of evidence used in conviction must have undergone a legal process [by which
it is] examined and verified to be true;
(3) There is no contradiction between items of evidence or between an item of evidence and
the facts of the case, unless the contradiction can be reasonably ruled out;
(4) In cases involving offenses committed jointly, a defendant's position and role [in the crime]
have been fully examined;
(5) The process of determining the facts of the case based on evidence comports with logic
and empirical rules, and the conclusion drawn from the evidence is the only one [possible].
In handling death penalty cases, proof of each of the following facts must be based on credible,
abundant evidence:
(1) [Whether] the crime charged was committed;
(2) [Whether] a defendant committed the criminal act and the time, place, manner,
consequence, and other details of the criminal act committed by that defendant;
(3) Circumstances regarding a defendant's identity that have an influence on conviction;
(4) [Whether] the defendant possesses criminal responsibility;
(5) The defendant's culpability;
(6) Whether the offense was committed jointly and what the defendant's position and role was
in that joint offense;
(7) Facts warranting heavier punishment for the defendant.

II.Examination and Determination of Different Types of Evidence

1.Physical and Documentary Evidence

Article 6 In examining physical or documentary evidence, emphasis shall be placed on the
following:
(1) Whether the physical evidence is the original object or the documentary evidence is the
original document; whether photographs, video recordings, or replicas of physical evidence or
duplicates or facsimiles of documentary evidence match the original items or documents; whether
physical or documentary evidence has been identified and verified; whether photographs, video
recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence
were reproduced by more than two people; whether the producer has a signed, written explanation
concerning the production process and the location of the original document or item.
(2) Whether the procedure and methods of collection for physical or documentary evidence
are in compliance with the law and relevant regulations; whether physical or documentary evidence
that was obtained through on-scene investigation, inspection, search, or confiscation have
corresponding records or invoices; whether the records or invoices are signed by [police]
investigators, the persons who possessed the items, and witnesses, and whether an explanation is
provided if the signature of the person who possessed the items is absent; whether the
distinguishing features, number, quality, and names of the items are clearly described.
(3) Whether physical or documentary evidence was damaged or altered in the process of
collection, storage, or authentication.
(4) Whether physical or documentary evidence has any relation to the facts of a case.
Whether biological evidence, traces, or items left at the scene and related to the crime, such as
bloodstains, fingerprints, hair samples, or bodily fluids, that satisfy the conditions for testing have
undergone DNA testing, fingerprint analysis, or other testing methods, and whether they have been
determined to match relevant biological samples, biological characteristics, or items from the
defendant or victim.
(5) Whether all physical or documentary evidence related to the facts of a case has been
collected in full.

Article 7 If any bloodstains, fingerprints, footprints, handwriting samples, hair samples, bodily
fluids, human organs, or other traces or items possibly related to the facts of a case are discovered
through on-scene investigation, inspection, or search and either ought to have been recovered but
were not or ought to have been tested but were not, with the result being that there remain doubts
about the facts of the case, the people's court shall explain the situation to the people's
procuratorate, and the people's procuratorate may additionally collect or obtain evidence and
produce a reasonable explanation or return the case to the investigating organ to conduct
additional investigation or obtain relevant evidence.

Article 8 Physical evidence used as a basis for conviction should be the original item. Only when
the original item is inconvenient to transport or difficult to preserve, or, in accordance with the law,
must be kept in storage or disposed of by the relevant department or returned may a photo or video
recording be shot or a replica produced that reflects the original likeness or content. A photograph,
video recording, or replica of physical evidence may serve as a basis for conviction only after
having been compared with the original item and found to have no errors, subjected to
authentication as true, or undergone some other method able to prove it to be a true [copy]. Any
photograph, video recording, or replica that does not reflect the original likeness and distinguishing
features of the original may not serve as a basis for conviction.
Documentary evidence used as a basis for conviction should be the original item. Duplicates or
facsimiles may only be used when there is real difficulty in obtaining the original document.
Duplicates or facsimiles of documentary evidence may serve as the basis for conviction only after
having been compared with the original items and found to have no errors, subjected to
authentication as true, or undergone some other method able to prove it to be a true [copy]. Any
documentary evidence that has been altered or shows traces of alteration that cannot be
reasonably explained or any duplicate or facsimile of documentary evidence that does not reflect
the original document and its content may not serve as a basis for conviction.

Article 9 Any physical or documentary evidence obtained through on-site investigation,
inspection, search, or confiscation that is not accompanied by a record of on-site investigation or
inspection, a search record or record of requisition, or an invoice of items confiscated may not
serve as a basis for conviction if its origins cannot be verified.
If there are any of the following flaws in the procedures or methods used to collect physical or
documentary evidence, [the evidence in question] may be used if the relevant officer rectifies [the
error] or provides a reasonable explanation:
(1) For physical or documentary evidence that has been collected or obtained, the record of
on-site investigation or inspection, search record, record of requisition, or invoice of items
confiscated is not signed by the investigator, the person who possessed the items, or witness, or
the distinguishing features, number, quality, or names of the items are not clearly described;
(2) For photographs, video recordings, or replicas of physical evidence or duplicates or
facsimiles of documentary evidence that have been collected or obtained, there is no notation that
they have been checked against the original items and found to be identical, the time of production
is not noted, or the signature (chop) of the person (unit) from whom [the evidence] was collected or
obtained is missing;
(3) Photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles
of documentary evidence do not have a written explanation from the person who produced them
about the production process and the location of the original document or item or that explanation
has not been signed.
(4) There are other flaws in the procedures or methods [used to] collect physical or
documentary evidence.
If there are questions about the source of or collection procedures for physical or documentary
evidence and no reasonable explanation is given, that physical or documentary evidence may not
serve as a basis for conviction.

Article 10 Physical or documentary evidence that satisfies the conditions for identification should
be identified by a party to the case or a witness, or, if necessary, submitted for authentication.

2.Witness Testimony

Article 11 In examining witness testimony, emphasis shall be placed on the following:
(1) Whether the testimony is [based on] the direct perception of the witness;
(2) Whether at the time given the testimony of the witness might be influenced by his or her
age, cognitive level, capability of recollection and expression, or physiological or psychological
state;
(3) Whether the witness has an interest with respect to a party in the case or the outcome of
the case;
(4) Whether the testimony was obtained using procedures and methods in compliance with
the law and relevant regulations; whether violence, threats, inducements, deception, or other illegal
methods of obtaining evidence were used; whether there were violations of regulations requiring
witnesses to be questioned individually; whether the transcript was checked for accuracy by the
witness and a signature (chop) or fingerprint affixed; whether in questioning a juvenile witness his
or her legal representative was called to appear and whether the legal representative did appear or
not;
(5) Whether the witness testimony corroborates other testimony or evidence or whether there
are contradictions;

Article 12 Witness statements obtained through violence, threats, or other illegal means may not
serve as a basis for conviction.
Testimony by witnesses who are clearly under the influence of alcohol, narcotics, or
psychotropic drugs such that they cannot properly express themselves may not serve as a basis for
conviction.
Witness testimony involving conjecture, opinion, or inference may not be used as evidence,
except empirical judgments based on daily life that accord with the facts.

Article 13 The following kinds of witness testimony may not serve as a basis for conviction:
(1) Testimony obtained without questioning witnesses individually;
(2) Written testimony that was not checked for accuracy by the witness and a signature (chop)
or fingerprint affixed;
(3) Questioning of a deaf-mute or a member of an ethnic minority or foreigner who does not
understand the local common vernacular or written language, when a translator should have been
provided but was not.

Article 14 If there are any of the following flaws in the procedures or methods used to obtain
witness testimony, [the testimony in question] may be used if the relevant officer rectifies [the error]
or provides a reasonable explanation:
(1)
The [record] does not provide the name of the questioner, recorder, or legal
representative or the start and stop time or place of the interview;
(2) The location where the witness was interviewed does not comply with regulations;
(3) The interview record does not note that the witness was told that he or she should give a
truthful statement and that intentionally giving false testimony or withholding evidence of a crime is
punishable under the law;
(4) Interview records show that the same interviewer was interviewing a different witness at
the same time.

Article 15 Under the following circumstances, the people's court should call a witness to give
testimony before the court. Written testimony from a witness who has been summoned in
accordance with the law but who does not testify in court may not serve as a basis for conviction if
there is no way to verify it under cross examination:
(1) The people's procuratorate and the defendant and his or her defense counsel disputes
the testimony of a witness and that witness testimony [will have] a major impact on conviction or
sentencing;
(2) Others the people's court determines should appear in court to give testimony.
When the testimony of a witness in court contradicts his or her pretrial testimony, if the witness
can provide a reasonable explanation in court for recanting his or her [earlier] testimony and there
is related evidence to corroborate it, [the court] should accept the testimony given in court.
[The court] should listen to the opinions of the procurator appearing in court and the defendant
and his or her defense counsel regarding the written testimony of a witness who does not appear in
court and make a general determination in consideration of other evidence. If contradictions appear
in the written testimony of a non-appearing witness and those contradictions cannot be ruled out
and there is no corroborating evidence, [the testimony] may not serve as a basis for conviction.

Article 16 When witness testimony concerns state secrets or individual privacy, it should be kept
secret.
When a witness testifies in court, the people's court may, if necessary, take protective
measures such as restricting the publication of the identity of the witness, limiting questioning,
shielding the face, or altering the voice.

3.Victim Statements

Article 17 The aforementioned provisions for witness testimony should be applied as relevant for
the examination and determination of victim statements.

4.Defendant Declarations and Defense Statements

Article 18 In examining a defendant's declarations and defense statement, emphasis shall be
placed on the following:
(1) Whether the time and place of the interrogation and identity of the interrogator was, at the
time of interrogation, in compliance with the law and relevant regulations; whether there were fewer
than two investigators interrogating the defendant; whether defendants were interrogated
individually;
(2) Whether the interrogation record was produced and revised in compliance with the law
and relevant regulations; whether the interrogation record noted the start and stop times and
location of the interrogation; whether at the first interrogation the defendant was told of his or her
procedural rights such as [the rights] to request recusal or engage a lawyer; whether the defendant
checked [the interrogation record] for accuracy and affixed a signature (chop) or fingerprint;
whether fewer than two interrogators signed [the interrogation record];
(3) Whether a person proficient in sign language or a translator is present for interrogations of
individuals who are deaf-mute, ethnic minorities, or foreigners; whether, in an interrogation of a
juvenile accomplice, his or her legal representative was called to appear and whether or not the
legal representative did appear;
(4) Whether a defendant's declaration was obtained through illegal means such as coercing
confession; if necessary, [the court] may request a defendant's medical examination records from
the time of entry in the detention center;
(5) Whether a defendant's declarations have been consistent or, if the statements have
changed, whether reasons for the changes were given; whether all of the defendant's declarations
and defense statements have been included in the case file; and, if all of the declarations and
defense statements that ought to be in the file are not, whether an explanation has been provided;
(6) Whether the defendant's defense statement comports with the circumstances of the case
and common sense, or whether there are contradictions;
(7) Whether the defendant's declaration and defense statement is consistent with the
declarations and defense statements of co-defendants, or whether there are contradictions.
In the aforementioned situations, if the investigating organ has provided audiovisual
documentation, it ought to be examined in combination [with the relevant declarations].

Article 19 If a defendant's declaration has been obtained through use of illegal means such as
coercing confession, it may not serve as a basis for conviction.

Article 20 Defendant declarations may not serve as a basis for conviction under the following
circumstances:
(1) The interrogation transcript has not been checked for accuracy by the defendant and a
signature (chop) or fingerprint affixed;
(2) Interrogation of a person who is deaf-mute or does not understand the local common
vernacular or written language without providing the required person proficient in sign language or
a translator.

Article 21 If there are any of the following flaws in the interrogation record, it may be used if the
relevant officer rectifies [the error] or provides a reasonable explanation:
(1) The interrogation times, interrogators' names, or name of the legal representative are
recorded in error or there are contradictions;
(2) The interrogators did not sign their names;
(3) The record of the first interrogation does not note that the person being interrogated was
informed of his or her procedural rights.

Article 22 [The court] should examine a defendant's declaration and defense statement in
consideration of all of the evidence submitted by the prosecution and defense as well as all of the
defendant's declarations and defense statements.
If a defendant's pretrial declarations are consistent but he or she retracts the declaration during
the trial proceeding without providing a reasonable explanation for the retraction or if the defense
statement contradicts the totality of the the evidence in the case, when the pretrial declaration is
corroborated by other evidence [the court] may accept the defendant's pretrial declaration as
reliable.
If a defendant has repeatedly changed his or her pretrial declaration or defense statement but
admits guilt during the trial proceeding, [the court] may accept the declaration made at trial as
reliable if there is other evidence that can corroborate that declaration. If a defendant has
repeatedly changed his or her pretrial declaration or defense statement and does not admit guilt
during the trial proceeding, without other evidence to corroborate the pretrial declaration [the court]
may not accept the declaration made at trial as reliable.

5. Expert Opinions

Article 23 In examining expert opinions, emphasis shall be placed on the following:
(1) Whether the expert should have recused himself or herself but did not;
(2) Whether the expert and his or her organization possess legal qualifications;
(3) Whether the expert evaluation procedures were in compliance with the law and relevant
regulations;
(4) Whether the [processes for] sourcing, obtaining, storing, and transporting the specimen
were in compliance with the law and relevant regulations; whether the record of how the evidence
was obtained or the invoice of items seized is in order; whether the specimen is sufficient and
reliable;
(5) Whether the procedures, methods, and analytical process [used in] the expert evaluation
satisfy the required professional inspection and evaluation procedures and techniques;
(6) Whether the formal criteria for the expert evaluation have been satisfied; whether the
explanation includes identification of the subject for evaluation, the party requesting the evaluation,
the institution conducting the evaluation, the evaluation requirements, the evaluation process, the
inspection methods, and the date of the certification report; whether the expert institution has
affixed the appropriate chop and the expert conducting the certification has signed [the report] and
affixed a chop;
(7) Whether the expert opinion is clear;
(8) Whether the expert opinion is relevant to a fact of the case needing to be proven;
(9) Whether the expert opinion contradicts other evidence; whether the expert opinion
contradicts the inspection record or relevant photographs;
(10) Whether relevant persons were notified of the expert opinion [results] in a timely manner
in accordance with the law; whether the parties to the case dispute the expert opinion.

Article 24 Expert opinions may not serve as a basis for conviction under the following
circumstances:
(1) The expert institution lacks the legal qualifications and capacity or the matter for
certification exceeds the institution's area of expertise or capabilities;
(2) The expert lacks the legal qualifications and capacity, lacks the relevant professional
technical skills or job title, or violates the regulations on recusal;
(3) There are errors in the evaluation procedures or methods;
(4) The expert opinion has no relevance to the subject needing confirmation;
(5) The subject being evaluated is not the same as the specimen or sample that was sent for
inspection;
(6) The source of the specimen or sample sent for inspection is unclear or was contaminated
such that it does not meet the conditions for evaluation;
(7) There are violations of specific evaluation standards;
(8) The expert report lacks a signature or chop;
(9) Other violations of relevant regulations.
If there are questions about an expert opinion, the people's court should call on the expert to
give testimony in court or prepare an appropriate explanation, or it may also order additional
evaluation or a new evaluation.

6.Records of On-Site Investigation and Inspection

Article 25 In examining records of on-site investigation and inspection, emphasis shall be placed
on the following:
(1) Whether the on-site investigation or inspection was conducted in accordance with the law;
whether the record was produced in compliance with the requirements of the law and relevant
regulations; whether the officers conducting the on-site investigation or inspection and witnesses
signed the report or affixed their chops;
(2) Whether the record of on-site investigation or inspection is complete, detailed, accurate,
and standard in format; whether the subject, time, place, persons on the scene, scene location, and
surrounding environment of an on-site investigation or inspection are recorded accurately; whether
the location and characteristics of the scene, items, individuals, and corpses, as well as the process
of on-site investigation or inspection are accurately recorded; whether the written description
matches physical objects or drawings, video recordings, or photos; whether the manner and
methods used to fix [the location] of evidence is scientific and standard; whether the crime scene,
items, or traces were damaged or fabricated and whether the crime scene was in its original state;
whether distinguishing features or injuries of individuals were disguised or altered;
(3) When additional on-site investigation or inspection is carried out, whether there are
contradictions with [earlier] investigations and whether reasons can be provided to explain the need
for additional on-site investigation or inspection;
(4) Whether the record of on-site investigation or inspection corroborates or contradicts other
evidence, such as the defendant's declaration, the victim's statement, or the expert opinion.

Article 26
If a record of on-site investigation or inspection clearly does not comply with the law
and relevant regulations and no reasonable explanation is provided, it may not be used as
evidence.
If a record of on-site investigation or inspection does not list any witnesses, if the investigating
officer(s) or witnesses did not sign [the record] or affix a chop, or if the investigating officer(s)
violated the regulations on recusal, [the court] should consider other evidence in the case in
examining the authenticity and relevance [of the record in question].

7.Audiovisual Materials

Article 27 In examining audiovisual materials, emphasis shall be placed on the following:
(1) Whether the source of the audiovisual materials is legal and whether threats, inducements,
or other violations of the law and relevant regulations were used against the party in the course of
production;
(2) Whether the identity of the producer or the possessor and the time, place, and conditions
of production are clearly stated;
(3) Whether [the material] is the original or, if a reproduction, how many copies there are; if
the audiovisual material obtained is a reproduction, whether an explanation is provided regarding
the inability to obtain the original, the process of reproduction, and the location of the original;
whether the signature or chop of the reproducer and the person in possession of the original
audiovisual material [has been provided];
(4) Whether the content and production process are authentic or whether [the material] has
undergone rearrangement, addition, deletion, editing or other fabrication or alteration;
(5) Whether the content is relevant to the facts of the case.
If there are questions about audiovisual materials, an expert evaluation should be conducted.
The authenticity and relevance of audiovisual materials should be examined in consideration of
other case evidence.

Article 28 Audiovisual materials may not serve as a basis for conviction under the following
circumstances:
(1) The authenticity of the audiovisual materials cannot be established following examination
or expert evaluation;
(2) There is dispute about the production of the audiovisual materials or the time, place, and
manner with which they were obtained and no reasonable explanation or requisite proof can be
provided.

8.Other Provisions

Article 29 In examining electronic evidence such as electronic mail, electronic data exchange,
online chat transcripts, blogs, mobile telephone text messages, or electronic signatures or domain
names, emphasis shall be placed on the following:
(1) Whether electronic evidence stored on a storage medium such as a computer disk or CD
has been submitted together with the printed version;
(2) Whether the time, place, target, producer, production process, and equipment for the
electronic evidence is clearly stated;
(3) Whether production, storage, transfer, access, collection, and presentation [of the
electronic evidence] were carried out legally and whether individuals obtaining, producing,
possessing, and witnessing the evidence affixed their signature or chop;
(4) Whether the content is authentic or whether it has undergone cutting, combination,
tampering, or augmentation or other fabrication or alteration;
(5) Whether the electronic evidence is relevant to the facts of the case.
If there are questions about electronic evidence, an expert evaluation should be conducted.
The authenticity and relevance of electronic evidence should be examined in consideration of
other case evidence.

Article 30 Under the following circumstances, identification [of evidence] arranged by the
investigating organ shall be carefully examined and may not serve as a basis for conviction if their
authenticity cannot be verified:
(1) The identification was not conducted under the direction of the investigating officer(s);
(2) The person doing the identification was shown the target of identification beforehand;
(3) Persons doing the identification did not carry out the identification process individually;
(4) Except specifically in the identification of corpses and locations, the identification target
was not placed in the midst of other targets with similar distinguishing characteristics, or the
number of targets provided for identification did not comply with regulations;
(5) The person doing the identification was clearly given a hint or there is suspicion that he or
she was instructed about what to identify.
Identification results may be used as evidence under the following circumstances if the relevant
officer rectifies [the error] or provides a reasonable explanation:
(1) The identification was directed by fewer than two investigators;
(2) The person doing the identification was not asked detailed questions about specific
distinguishing characteristics of the identification target;
(3) No standardized identification record was produced specifically to document the process
and results of identification or the investigator(s), person doing the identification, or witness did not
sign or affix a chop to the identification record;
(4) The identification record is too simple, with only results and no [record of the] process;
(5) The case file has only the identification record and no photos or video of the investigation
target, so that there is no way to know whether the identification was authentic.

Article 31 In examining documents such as the investigating organ's record of how a case was
solved, it should be noted whether the explanatory document is signed by the officer(s) in charge
and the chop of the organ in charge affixed.
If there are questions about how a case was solved or there are questions about the basis by
which suspicion of a defendant was determined to be major, additional explanation from the
investigating organ shall be requested.

III.General Examination and Use of Evidence

Article 32 The probative force of evidence shall be examined and judged in combination with the
specifics of the case, the degree of relevance between each item of evidence and the fact to be
proven, and the relationship between items of evidence.
Only pieces of evidence that are intrinsically related, that together point toward a fact to be
proven, and that reasonably rule out contradictions may serve as a basis for conviction.

Article 33 If no direct evidence exists to prove that a criminal act was committed by the defendant,
the defendant may still be convicted if the following conditions are met:
(1) Indirect evidence to be used as the basis for conviction has been examined and verified to
be true;
(2) Indirect evidence to be used as the basis for conviction is mutually corroborating, there
are no contradictions that cannot be rule out or questions that cannot be explained;
(3) Indirect evidence to be used as the basis for conviction forms a complete body of proof;
(4) The facts of the case established by the indirect evidence lead to only one conclusion and
can rule out all reasonable doubt;
(5) The reasoning with which the indirect evidence is used comports with logic and empirical
judgment.
Extreme caution should be used in imposing the death penalty for a conviction based on
indirect evidence.

Article 34
Deeply concealed physical or documentary evidence uncovered through
a declaration or identification made by the defendant may [be used] to convict if it is corroborated
by other evidence proving the fact of the crime and the possibility that the statement was based on
collusion, coercion, or inducement can be ruled out.

Article 35 Physical, documentary, and other evidence collected by the investigating organ using
special investigative measures in accordance with relevant regulations may serve as a basis for
conviction if the court has verified it to be true.
The court shall, in accordance with the law, not reveal procedures and methods [used in]
special investigative measures.

Article 36 Once the defendant has been convicted, the people's court should examine the
following circumstances having an influence on sentencing, in addition to those that are specified
by law:
(1) The cause of the crime;
(2) Whether the victim was at fault and the degree of fault and whether [the victim] was
responsible for exacerbating a conflict and the degree of responsibility;
(3) Whether the defendant's immediate family members assisted in apprehending the
defendant;
(4) The defendant's normal behavior and whether he or she has shown remorse;
(5) Whether the victim filed an associated civil suit for compensation and whether the victim or
the victim's immediate family have shown understanding toward the defendant;
(6) Other circumstances influencing sentencing.
If there are circumstances that warrant lenient or reduced punishment as well as circumstances
that warrant heavier punishment, [the court] shall consider the circumstances in their entirety in
accordance with the law.
If circumstances warranting lenient or reduced punishment cannot be ruled out, extreme care
should be used in imposing the death penalty.

Article 37 Evidence should be used with care in the following circumstances and accepted as
reliable if other evidence can corroborate it:
(1) Statements, testimony, or declarations made by victims, witnesses, or defendants who
are physically or mentally handicapped, who have definite difficulty in understanding or expression
with respect to the facts of the case but who have not [fully] lost their ability to understand and
express themselves properly;
(2) Testimony benefiting a defendant given by a witness who is a relative or having other
close ties to that defendant, or testimony harmful to a defendant given by a witness having a
conflict of interest with that defendant.

Article 38 If the court has questions about evidence, it may call on the appointed procurator or
the defendant and his or her defense counsel to produce additional evidence or provide an
explanation. If it is necessary to conduct verification, [the court] may call a recess in order to
investigate and verify evidence. If the court conducts an external investigation outside the
courthouse, it may, if necessary, call on the appointed procurator and defense counsel to be
present. If either the appointed procurator or the defense counsel or both parties are not present,
the court's record shall become part of the case file.
The court may solicit opinions from the appointed procurator and defense counsel regarding
evidence supplemented by the people's procuratorate or defense counsel or obtained through the
court's external investigation and verification. If the two sides are not in agreement and one side
requests that the court hold a hearing to investigate, the court shall hold a hearing.

Article 39 If a defendant and his or her defense counsel claim [that the defendant] voluntarily
surrendered but the relevant organ has not established this fact, [the court] shall request that the
relevant organ provide documentation or request that the relevant personnel testify and judge, in
consideration of other evidence, whether [the claim of] surrender is valid.
If there is incomplete documentation to prove whether or how a defendant assisted in the
apprehension of other co-defendants such that it is impossible to determine whether the defendant
rendered meritorious service, [the court] shall request that the relevant organ provide
documentation or request that the relevant personnel testify and judge, in consideration of other
evidence, whether [the claim of] meritorious service is valid.
If a defendant reported or exposed crimes committed by another person, [the court] should
examine whether or not the veracity [of the report] has been investigated; if it has not been
investigated, it shall be investigated at once.
If there is incomplete documentation to prove whether the defendant is a repeat offender, [the
court] shall request the relevant organ provide documentation.

Article 40 Generally, [the court] shall use household registration records as a basis of proof in
examining whether a defendant was at least 18 years old at the time the crime was committed. If
there is a dispute over the household registration records and investigation finds there to be valid
documentation of birth or testimony from an uninterested party confirming that the defendant was
not at least 18 years old, [the court] should find that the defendant was not 18 years old. If there is
no household registration record or documentation of birth, [the court] shall make a general
judgment based on census records, testimony from an uninterested party, or other evidence; if
necessary, [the court] may conduct an investigation of skeletal age and use the results as a
reference in judging the defendant's age.
When contradictions between items of evidence cannot be ruled out and there is insufficient
evidence to prove that a defendant was at least 18 years old at the time the alleged crime was
committed, if there is truly no way to determine [the truth, the court] may not determine that he or
she was at least 18 years old.

Article 41
These rules take effect on July 1, 2010.

Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases

2010-07-01T14:28:44Z

Mmurray: Created page with 'In order to handle death penalty cases, punish crime, and protect human rights with fairness and caution and in accordance with the law, these rules are established in accordance�'

In order to handle death penalty cases, punish crime, and protect human rights with fairness
and caution and in accordance with the law, these rules are established in accordance with the
provisions of the Criminal Procedure Law of the PRC and other relevant legal provisions and in
combination with legal practice.
I.
General Provisions
Article 1 The Criminal Law and Criminal Procedure Law must be strictly implemented in handling
death penalty cases in order to ensure the cases' quality and that the facts are clear, the evidence
is credible and sufficient, procedures are legal, and the law is applied correctly.

Article 2
The facts used to determine guilt in a case must be based on evidence.

Article 3 [Police] investigators, procurators, and judicial officers shall stringently obey legal
procedure and fully and objectively collect, examine, verify, and make determinations about
evidence.

Article 4 Only evidence that has been examined and verified to be true through an investigation
process in court involving presentation, identification, and cross-examination may be used as a
basis for conviction and determining sentence.

Article 5 In death penalty cases, determination of the facts of the defendant's crime must be
based on credible, abundant evidence.
Credible, abundant evidence means:
(1) All of the facts used to convict and determine sentence are proven by evidence;
(2) Each item of evidence used in conviction must have undergone a legal process [by which
it is] examined and verified to be true;
(3) There is no contradiction between items of evidence or between an item of evidence and
the facts of the case, unless the contradiction can be reasonably ruled out;
(4) In cases involving offenses committed jointly, a defendant's position and role [in the crime]
have been fully examined;
(5) The process of determining the facts of the case based on evidence comports with logic
and empirical rules, and the conclusion drawn from the evidence is the only one [possible].
In handling death penalty cases, proof of each of the following facts must be based on credible,
abundant evidence:
(1) [Whether] the crime charged was committed;
(2) [Whether] a defendant committed the criminal act and the time, place, manner,
consequence, and other details of the criminal act committed by that defendant;
(3) Circumstances regarding a defendant's identity that have an influence on conviction;
(4) [Whether] the defendant possesses criminal responsibility;
(5) The defendant's culpability;
(6) Whether the offense was committed jointly and what the defendant's position and role was
in that joint offense;
(7) Facts warranting heavier punishment for the defendant.

II.Examination and Determination of Different Types of Evidence

1.Physical and Documentary Evidence
Article 6 In examining physical or documentary evidence, emphasis shall be placed on the
following:
(1) Whether the physical evidence is the original object or the documentary evidence is the
original document; whether photographs, video recordings, or replicas of physical evidence or
duplicates or facsimiles of documentary evidence match the original items or documents; whether
physical or documentary evidence has been identified and verified; whether photographs, video
recordings, or replicas of physical evidence or duplicates or facsimiles of documentary evidence
were reproduced by more than two people; whether the producer has a signed, written explanation
concerning the production process and the location of the original document or item.
(2) Whether the procedure and methods of collection for physical or documentary evidence
are in compliance with the law and relevant regulations; whether physical or documentary evidence
that was obtained through on-scene investigation, inspection, search, or confiscation have
corresponding records or invoices; whether the records or invoices are signed by [police]
investigators, the persons who possessed the items, and witnesses, and whether an explanation is
provided if the signature of the person who possessed the items is absent; whether the
distinguishing features, number, quality, and names of the items are clearly described.
(3) Whether physical or documentary evidence was damaged or altered in the process of
collection, storage, or authentication.
(4) Whether physical or documentary evidence has any relation to the facts of a case.
Whether biological evidence, traces, or items left at the scene and related to the crime, such as
bloodstains, fingerprints, hair samples, or bodily fluids, that satisfy the conditions for testing have
undergone DNA testing, fingerprint analysis, or other testing methods, and whether they have been
determined to match relevant biological samples, biological characteristics, or items from the
defendant or victim.
(5) Whether all physical or documentary evidence related to the facts of a case has been
collected in full.

Article 7 If any bloodstains, fingerprints, footprints, handwriting samples, hair samples, bodily
fluids, human organs, or other traces or items possibly related to the facts of a case are discovered
through on-scene investigation, inspection, or search and either ought to have been recovered but
were not or ought to have been tested but were not, with the result being that there remain doubts
about the facts of the case, the people's court shall explain the situation to the people's
procuratorate, and the people's procuratorate may additionally collect or obtain evidence and
produce a reasonable explanation or return the case to the investigating organ to conduct
additional investigation or obtain relevant evidence.

Article 8 Physical evidence used as a basis for conviction should be the original item. Only when
the original item is inconvenient to transport or difficult to preserve, or, in accordance with the law,
must be kept in storage or disposed of by the relevant department or returned may a photo or video
recording be shot or a replica produced that reflects the original likeness or content. A photograph,
video recording, or replica of physical evidence may serve as a basis for conviction only after
having been compared with the original item and found to have no errors, subjected to
authentication as true, or undergone some other method able to prove it to be a true [copy]. Any
photograph, video recording, or replica that does not reflect the original likeness and distinguishing
features of the original may not serve as a basis for conviction.
Documentary evidence used as a basis for conviction should be the original item. Duplicates or
facsimiles may only be used when there is real difficulty in obtaining the original document.
Duplicates or facsimiles of documentary evidence may serve as the basis for conviction only after
having been compared with the original items and found to have no errors, subjected to
authentication as true, or undergone some other method able to prove it to be a true [copy]. Any
documentary evidence that has been altered or shows traces of alteration that cannot be
reasonably explained or any duplicate or facsimile of documentary evidence that does not reflect
the original document and its content may not serve as a basis for conviction.

Article 9 Any physical or documentary evidence obtained through on-site investigation,
inspection, search, or confiscation that is not accompanied by a record of on-site investigation or
inspection, a search record or record of requisition, or an invoice of items confiscated may not
serve as a basis for conviction if its origins cannot be verified.
If there are any of the following flaws in the procedures or methods used to collect physical or
documentary evidence, [the evidence in question] may be used if the relevant officer rectifies [the
error] or provides a reasonable explanation:
(1) For physical or documentary evidence that has been collected or obtained, the record of
on-site investigation or inspection, search record, record of requisition, or invoice of items
confiscated is not signed by the investigator, the person who possessed the items, or witness, or
the distinguishing features, number, quality, or names of the items are not clearly described;
(2) For photographs, video recordings, or replicas of physical evidence or duplicates or
facsimiles of documentary evidence that have been collected or obtained, there is no notation that
they have been checked against the original items and found to be identical, the time of production
is not noted, or the signature (chop) of the person (unit) from whom [the evidence] was collected or
obtained is missing;
(3) Photographs, video recordings, or replicas of physical evidence or duplicates or facsimiles
of documentary evidence do not have a written explanation from the person who produced them
about the production process and the location of the original document or item or that explanation
has not been signed.
(4) There are other flaws in the procedures or methods [used to] collect physical or
documentary evidence.
If there are questions about the source of or collection procedures for physical or documentary
evidence and no reasonable explanation is given, that physical or documentary evidence may not
serve as a basis for conviction.

Article 10 Physical or documentary evidence that satisfies the conditions for identification should
be identified by a party to the case or a witness, or, if necessary, submitted for authentication.

2.Witness Testimony
Article 11 In examining witness testimony, emphasis shall be placed on the following:
(1) Whether the testimony is [based on] the direct perception of the witness;
(2) Whether at the time given the testimony of the witness might be influenced by his or her
age, cognitive level, capability of recollection and expression, or physiological or psychological
state;
(3) Whether the witness has an interest with respect to a party in the case or the outcome of
the case;
(4) Whether the testimony was obtained using procedures and methods in compliance with
the law and relevant regulations; whether violence, threats, inducements, deception, or other illegal
methods of obtaining evidence were used; whether there were violations of regulations requiring
witnesses to be questioned individually; whether the transcript was checked for accuracy by the
witness and a signature (chop) or fingerprint affixed; whether in questioning a juvenile witness his
or her legal representative was called to appear and whether the legal representative did appear or
not;
(5) Whether the witness testimony corroborates other testimony or evidence or whether there
are contradictions;
Article 12 Witness statements obtained through violence, threats, or other illegal means may not
serve as a basis for conviction.
Testimony by witnesses who are clearly under the influence of alcohol, narcotics, or
psychotropic drugs such that they cannot properly express themselves may not serve as a basis for
conviction.
Witness testimony involving conjecture, opinion, or inference may not be used as evidence,
except empirical judgments based on daily life that accord with the facts.

Article 13 The following kinds of witness testimony may not serve as a basis for conviction:
(1) Testimony obtained without questioning witnesses individually;
(2) Written testimony that was not checked for accuracy by the witness and a signature (chop)
or fingerprint affixed;
(3) Questioning of a deaf-mute or a member of an ethnic minority or foreigner who does not
understand the local common vernacular or written language, when a translator should have been
provided but was not.

Article 14 If there are any of the following flaws in the procedures or methods used to obtain
witness testimony, [the testimony in question] may be used if the relevant officer rectifies [the error]
or provides a reasonable explanation:
(1)
The [record] does not provide the name of the questioner, recorder, or legal
representative or the start and stop time or place of the interview;
(2) The location where the witness was interviewed does not comply with regulations;
(3) The interview record does not note that the witness was told that he or she should give a
truthful statement and that intentionally giving false testimony or withholding evidence of a crime is
punishable under the law;
(4) Interview records show that the same interviewer was interviewing a different witness at
the same time.

Article 15 Under the following circumstances, the people's court should call a witness to give
testimony before the court. Written testimony from a witness who has been summoned in
accordance with the law but who does not testify in court may not serve as a basis for conviction if
there is no way to verify it under cross examination:
(1) The people's procuratorate and the defendant and his or her defense counsel disputes
the testimony of a witness and that witness testimony [will have] a major impact on conviction or
sentencing;
(2) Others the people's court determines should appear in court to give testimony.
When the testimony of a witness in court contradicts his or her pretrial testimony, if the witness
can provide a reasonable explanation in court for recanting his or her [earlier] testimony and there
is related evidence to corroborate it, [the court] should accept the testimony given in court.
[The court] should listen to the opinions of the procurator appearing in court and the defendant
and his or her defense counsel regarding the written testimony of a witness who does not appear in
court and make a general determination in consideration of other evidence. If contradictions appear
in the written testimony of a non-appearing witness and those contradictions cannot be ruled out
and there is no corroborating evidence, [the testimony] may not serve as a basis for conviction.

Article 16 When witness testimony concerns state secrets or individual privacy, it should be kept
secret.
When a witness testifies in court, the people's court may, if necessary, take protective
measures such as restricting the publication of the identity of the witness, limiting questioning,
shielding the face, or altering the voice.

3.Victim Statements
Article 17 The aforementioned provisions for witness testimony should be applied as relevant for
the examination and determination of victim statements.

4.Defendant Declarations and Defense Statements
Article 18 In examining a defendant's declarations and defense statement, emphasis shall be
placed on the following:
(1) Whether the time and place of the interrogation and identity of the interrogator was, at the
time of interrogation, in compliance with the law and relevant regulations; whether there were fewer
than two investigators interrogating the defendant; whether defendants were interrogated
individually;
(2) Whether the interrogation record was produced and revised in compliance with the law
and relevant regulations; whether the interrogation record noted the start and stop times and
location of the interrogation; whether at the first interrogation the defendant was told of his or her
procedural rights such as [the rights] to request recusal or engage a lawyer; whether the defendant
checked [the interrogation record] for accuracy and affixed a signature (chop) or fingerprint;
whether fewer than two interrogators signed [the interrogation record];
(3) Whether a person proficient in sign language or a translator is present for interrogations of
individuals who are deaf-mute, ethnic minorities, or foreigners; whether, in an interrogation of a
juvenile accomplice, his or her legal representative was called to appear and whether or not the
legal representative did appear;
(4) Whether a defendant's declaration was obtained through illegal means such as coercing
confession; if necessary, [the court] may request a defendant's medical examination records from
the time of entry in the detention center;
(5) Whether a defendant's declarations have been consistent or, if the statements have
changed, whether reasons for the changes were given; whether all of the defendant's declarations
and defense statements have been included in the case file; and, if all of the declarations and
defense statements that ought to be in the file are not, whether an explanation has been provided;
(6) Whether the defendant's defense statement comports with the circumstances of the case
and common sense, or whether there are contradictions;
(7) Whether the defendant's declaration and defense statement is consistent with the
declarations and defense statements of co-defendants, or whether there are contradictions.
In the aforementioned situations, if the investigating organ has provided audiovisual
documentation, it ought to be examined in combination [with the relevant declarations].

Article 19 If a defendant's declaration has been obtained through use of illegal means such as
coercing confession, it may not serve as a basis for conviction.

Article 20 Defendant declarations may not serve as a basis for conviction under the following
circumstances:
(1) The interrogation transcript has not been checked for accuracy by the defendant and a
signature (chop) or fingerprint affixed;
(2) Interrogation of a person who is deaf-mute or does not understand the local common
vernacular or written language without providing the required person proficient in sign language or
a translator.

Article 21 If there are any of the following flaws in the interrogation record, it may be used if the
relevant officer rectifies [the error] or provides a reasonable explanation:
(1) The interrogation times, interrogators' names, or name of the legal representative are
recorded in error or there are contradictions;
(2) The interrogators did not sign their names;
(3) The record of the first interrogation does not note that the person being interrogated was
informed of his or her procedural rights.

Article 22 [The court] should examine a defendant's declaration and defense statement in
consideration of all of the evidence submitted by the prosecution and defense as well as all of the
defendant's declarations and defense statements.
If a defendant's pretrial declarations are consistent but he or she retracts the declaration during
the trial proceeding without providing a reasonable explanation for the retraction or if the defense
statement contradicts the totality of the the evidence in the case, when the pretrial declaration is
corroborated by other evidence [the court] may accept the defendant's pretrial declaration as
reliable.
If a defendant has repeatedly changed his or her pretrial declaration or defense statement but
admits guilt during the trial proceeding, [the court] may accept the declaration made at trial as
reliable if there is other evidence that can corroborate that declaration. If a defendant has
repeatedly changed his or her pretrial declaration or defense statement and does not admit guilt
during the trial proceeding, without other evidence to corroborate the pretrial declaration [the court]
may not accept the declaration made at trial as reliable.

5. Expert Opinions
Article 23 In examining expert opinions, emphasis shall be placed on the following:
(1) Whether the expert should have recused himself or herself but did not;
(2) Whether the expert and his or her organization possess legal qualifications;
(3) Whether the expert evaluation procedures were in compliance with the law and relevant
regulations;
(4) Whether the [processes for] sourcing, obtaining, storing, and transporting the specimen
were in compliance with the law and relevant regulations; whether the record of how the evidence
was obtained or the invoice of items seized is in order; whether the specimen is sufficient and
reliable;
(5) Whether the procedures, methods, and analytical process [used in] the expert evaluation
satisfy the required professional inspection and evaluation procedures and techniques;
(6) Whether the formal criteria for the expert evaluation have been satisfied; whether the
explanation includes identification of the subject for evaluation, the party requesting the evaluation,
the institution conducting the evaluation, the evaluation requirements, the evaluation process, the
inspection methods, and the date of the certification report; whether the expert institution has
affixed the appropriate chop and the expert conducting the certification has signed [the report] and
affixed a chop;
(7) Whether the expert opinion is clear;
(8) Whether the expert opinion is relevant to a fact of the case needing to be proven;
(9) Whether the expert opinion contradicts other evidence; whether the expert opinion
contradicts the inspection record or relevant photographs;
(10) Whether relevant persons were notified of the expert opinion [results] in a timely manner
in accordance with the law; whether the parties to the case dispute the expert opinion.

Article 24 Expert opinions may not serve as a basis for conviction under the following
circumstances:
(1) The expert institution lacks the legal qualifications and capacity or the matter for
certification exceeds the institution's area of expertise or capabilities;
(2) The expert lacks the legal qualifications and capacity, lacks the relevant professional
technical skills or job title, or violates the regulations on recusal;
(3) There are errors in the evaluation procedures or methods;
(4) The expert opinion has no relevance to the subject needing confirmation;
(5) The subject being evaluated is not the same as the specimen or sample that was sent for
inspection;
(6) The source of the specimen or sample sent for inspection is unclear or was contaminated
such that it does not meet the conditions for evaluation;
(7) There are violations of specific evaluation standards;
(8) The expert report lacks a signature or chop;
(9) Other violations of relevant regulations.
If there are questions about an expert opinion, the people's court should call on the expert to
give testimony in court or prepare an appropriate explanation, or it may also order additional
evaluation or a new evaluation.
6.
Records of On-Site Investigation and Inspection

Article 25 In examining records of on-site investigation and inspection, emphasis shall be placed
on the following:
(1) Whether the on-site investigation or inspection was conducted in accordance with the law;
whether the record was produced in compliance with the requirements of the law and relevant
regulations; whether the officers conducting the on-site investigation or inspection and witnesses
signed the report or affixed their chops;
(2) Whether the record of on-site investigation or inspection is complete, detailed, accurate,
and standard in format; whether the subject, time, place, persons on the scene, scene location, and
surrounding environment of an on-site investigation or inspection are recorded accurately; whether
the location and characteristics of the scene, items, individuals, and corpses, as well as the process
of on-site investigation or inspection are accurately recorded; whether the written description
matches physical objects or drawings, video recordings, or photos; whether the manner and
methods used to fix [the location] of evidence is scientific and standard; whether the crime scene,
items, or traces were damaged or fabricated and whether the crime scene was in its original state;
whether distinguishing features or injuries of individuals were disguised or altered;
(3) When additional on-site investigation or inspection is carried out, whether there are
contradictions with [earlier] investigations and whether reasons can be provided to explain the need
for additional on-site investigation or inspection;
(4) Whether the record of on-site investigation or inspection corroborates or contradicts other
evidence, such as the defendant's declaration, the victim's statement, or the expert opinion.

Article 26
If a record of on-site investigation or inspection clearly does not comply with the law
and relevant regulations and no reasonable explanation is provided, it may not be used as
evidence.
If a record of on-site investigation or inspection does not list any witnesses, if the investigating
officer(s) or witnesses did not sign [the record] or affix a chop, or if the investigating officer(s)
violated the regulations on recusal, [the court] should consider other evidence in the case in
examining the authenticity and relevance [of the record in question].

7.Audiovisual Materials
Article 27 In examining audiovisual materials, emphasis shall be placed on the following:
(1) Whether the source of the audiovisual materials is legal and whether threats, inducements,
or other violations of the law and relevant regulations were used against the party in the course of
production;
(2) Whether the identity of the producer or the possessor and the time, place, and conditions
of production are clearly stated;
(3) Whether [the material] is the original or, if a reproduction, how many copies there are; if
the audiovisual material obtained is a reproduction, whether an explanation is provided regarding
the inability to obtain the original, the process of reproduction, and the location of the original;
whether the signature or chop of the reproducer and the person in possession of the original
audiovisual material [has been provided];
(4) Whether the content and production process are authentic or whether [the material] has
undergone rearrangement, addition, deletion, editing or other fabrication or alteration;
(5) Whether the content is relevant to the facts of the case.
If there are questions about audiovisual materials, an expert evaluation should be conducted.
The authenticity and relevance of audiovisual materials should be examined in consideration of
other case evidence.

Article 28 Audiovisual materials may not serve as a basis for conviction under the following
circumstances:
(1) The authenticity of the audiovisual materials cannot be established following examination
or expert evaluation;
(2) There is dispute about the production of the audiovisual materials or the time, place, and
manner with which they were obtained and no reasonable explanation or requisite proof can be
provided.

8.Other Provisions
Article 29 In examining electronic evidence such as electronic mail, electronic data exchange,
online chat transcripts, blogs, mobile telephone text messages, or electronic signatures or domain
names, emphasis shall be placed on the following:
(1) Whether electronic evidence stored on a storage medium such as a computer disk or CD
has been submitted together with the printed version;
(2) Whether the time, place, target, producer, production process, and equipment for the
electronic evidence is clearly stated;
(3) Whether production, storage, transfer, access, collection, and presentation [of the
electronic evidence] were carried out legally and whether individuals obtaining, producing,
possessing, and witnessing the evidence affixed their signature or chop;
(4) Whether the content is authentic or whether it has undergone cutting, combination,
tampering, or augmentation or other fabrication or alteration;
(5) Whether the electronic evidence is relevant to the facts of the case.
If there are questions about electronic evidence, an expert evaluation should be conducted.
The authenticity and relevance of electronic evidence should be examined in consideration of
other case evidence.

Article 30 Under the following circumstances, identification [of evidence] arranged by the
investigating organ shall be carefully examined and may not serve as a basis for conviction if their
authenticity cannot be verified:
(1) The identification was not conducted under the direction of the investigating officer(s);
(2) The person doing the identification was shown the target of identification beforehand;
(3) Persons doing the identification did not carry out the identification process individually;
(4) Except specifically in the identification of corpses and locations, the identification target
was not placed in the midst of other targets with similar distinguishing characteristics, or the
number of targets provided for identification did not comply with regulations;
(5) The person doing the identification was clearly given a hint or there is suspicion that he or
she was instructed about what to identify.
Identification results may be used as evidence under the following circumstances if the relevant
officer rectifies [the error] or provides a reasonable explanation:
(1) The identification was directed by fewer than two investigators;
(2) The person doing the identification was not asked detailed questions about specific
distinguishing characteristics of the identification target;
(3) No standardized identification record was produced specifically to document the process
and results of identification or the investigator(s), person doing the identification, or witness did not
sign or affix a chop to the identification record;
(4) The identification record is too simple, with only results and no [record of the] process;
(5) The case file has only the identification record and no photos or video of the investigation
target, so that there is no way to know whether the identification was authentic.

Article 31 In examining documents such as the investigating organ's record of how a case was
solved, it should be noted whether the explanatory document is signed by the officer(s) in charge
and the chop of the organ in charge affixed.
If there are questions about how a case was solved or there are questions about the basis by
which suspicion of a defendant was determined to be major, additional explanation from the
investigating organ shall be requested.

III.General Examination and Use of Evidence
Article 32 The probative force of evidence shall be examined and judged in combination with the
specifics of the case, the degree of relevance between each item of evidence and the fact to be
proven, and the relationship between items of evidence.
Only pieces of evidence that are intrinsically related, that together point toward a fact to be
proven, and that reasonably rule out contradictions may serve as a basis for conviction.

Article 33 If no direct evidence exists to prove that a criminal act was committed by the defendant,
the defendant may still be convicted if the following conditions are met:
(1) Indirect evidence to be used as the basis for conviction has been examined and verified to
be true;
(2) Indirect evidence to be used as the basis for conviction is mutually corroborating, there
are no contradictions that cannot be rule out or questions that cannot be explained;
(3) Indirect evidence to be used as the basis for conviction forms a complete body of proof;
(4) The facts of the case established by the indirect evidence lead to only one conclusion and
can rule out all reasonable doubt;
(5) The reasoning with which the indirect evidence is used comports with logic and empirical
judgment.
Extreme caution should be used in imposing the death penalty for a conviction based on
indirect evidence.

Article 34
Deeply concealed physical or documentary evidence uncovered through
a declaration or identification made by the defendant may [be used] to convict if it is corroborated
by other evidence proving the fact of the crime and the possibility that the statement was based on
collusion, coercion, or inducement can be ruled out.
Article 35 Physical, documentary, and other evidence collected by the investigating organ using
special investigative measures in accordance with relevant regulations may serve as a basis for
conviction if the court has verified it to be true.
The court shall, in accordance with the law, not reveal procedures and methods [used in]
special investigative measures.

Article 36 Once the defendant has been convicted, the people's court should examine the
following circumstances having an influence on sentencing, in addition to those that are specified
by law:
(1) The cause of the crime;
(2) Whether the victim was at fault and the degree of fault and whether [the victim] was
responsible for exacerbating a conflict and the degree of responsibility;
(3) Whether the defendant's immediate family members assisted in apprehending the
defendant;
(4) The defendant's normal behavior and whether he or she has shown remorse;
(5) Whether the victim filed an associated civil suit for compensation and whether the victim or
the victim's immediate family have shown understanding toward the defendant;
(6) Other circumstances influencing sentencing.
If there are circumstances that warrant lenient or reduced punishment as well as circumstances
that warrant heavier punishment, [the court] shall consider the circumstances in their entirety in
accordance with the law.
If circumstances warranting lenient or reduced punishment cannot be ruled out, extreme care
should be used in imposing the death penalty.

Article 37 Evidence should be used with care in the following circumstances and accepted as
reliable if other evidence can corroborate it:
(1) Statements, testimony, or declarations made by victims, witnesses, or defendants who
are physically or mentally handicapped, who have definite difficulty in understanding or expression
with respect to the facts of the case but who have not [fully] lost their ability to understand and
express themselves properly;
(2) Testimony benefiting a defendant given by a witness who is a relative or having other
close ties to that defendant, or testimony harmful to a defendant given by a witness having a
conflict of interest with that defendant.

Article 38 If the court has questions about evidence, it may call on the appointed procurator or
the defendant and his or her defense counsel to produce additional evidence or provide an
explanation. If it is necessary to conduct verification, [the court] may call a recess in order to
investigate and verify evidence. If the court conducts an external investigation outside the
courthouse, it may, if necessary, call on the appointed procurator and defense counsel to be
present. If either the appointed procurator or the defense counsel or both parties are not present,
the court's record shall become part of the case file.
The court may solicit opinions from the appointed procurator and defense counsel regarding
evidence supplemented by the people's procuratorate or defense counsel or obtained through the
court's external investigation and verification. If the two sides are not in agreement and one side
requests that the court hold a hearing to investigate, the court shall hold a hearing.

Article 39 If a defendant and his or her defense counsel claim [that the defendant] voluntarily
surrendered but the relevant organ has not established this fact, [the court] shall request that the
relevant organ provide documentation or request that the relevant personnel testify and judge, in
consideration of other evidence, whether [the claim of] surrender is valid.
If there is incomplete documentation to prove whether or how a defendant assisted in the
apprehension of other co-defendants such that it is impossible to determine whether the defendant
rendered meritorious service, [the court] shall request that the relevant organ provide
documentation or request that the relevant personnel testify and judge, in consideration of other
evidence, whether [the claim of] meritorious service is valid.
If a defendant reported or exposed crimes committed by another person, [the court] should
examine whether or not the veracity [of the report] has been investigated; if it has not been
investigated, it shall be investigated at once.
If there is incomplete documentation to prove whether the defendant is a repeat offender, [the
court] shall request the relevant organ provide documentation.

Article 40 Generally, [the court] shall use household registration records as a basis of proof in
examining whether a defendant was at least 18 years old at the time the crime was committed. If
there is a dispute over the household registration records and investigation finds there to be valid
documentation of birth or testimony from an uninterested party confirming that the defendant was
not at least 18 years old, [the court] should find that the defendant was not 18 years old. If there is
no household registration record or documentation of birth, [the court] shall make a general
judgment based on census records, testimony from an uninterested party, or other evidence; if
necessary, [the court] may conduct an investigation of skeletal age and use the results as a
reference in judging the defendant's age.
When contradictions between items of evidence cannot be ruled out and there is insufficient
evidence to prove that a defendant was at least 18 years old at the time the alleged crime was
committed, if there is truly no way to determine [the truth, the court] may not determine that he or
she was at least 18 years old.

Article 41
These rules take effect on July 1, 2010.

China

2010-07-01T14:17:32Z

Mmurray: /* Codes */

In China, criminal defense has long been considered a particularly difficult practice, as lawyers must overcome a myriad of institutional hurdles before obtaining discovery, conducting investigations, or summoning witnesses to court. Lawyers' access to their clients is too often restricted and too long delayed; it is not uncommon for one's first contact with his or her client to occur in the courtroom, just prior to trial. Faced with these obstacles, many attorneys perceive the role of the defense in the criminal process as structurally inferior to that of prosecutors, and feel that there is little good that they can accomplish for their clients. It is therefore not surprising that many attorneys are unwilling to take on criminal defendants' cases and that an exceptionally high percentage of criminal defendants go unrepresented by counsel at trial.

''This page contains IBJ's English language materials for legal aid lawyers in China. For Chinese language materials, please go to [http://chinadefensewiki.ibj.org chinadefensewiki.ibj.org]''
== China Criminal Defense Manual==
===Table of Contents===
* [[China Criminal Defense Manual - Pretrial Preparation | Pretrial Preparation]] (Investigation and Trial Prosecution)
* [[China Criminal Defense Manual - Developing a Defense for Trial | Developing a Defense for Trial]]
* [[China Criminal Defense Manual - Questioning the Witness | Questioning the Witness]]
* [[China Criminal Defense Manual - Special Considerations in Juvenile Cases | Special Considerations in Juvenile Cases]]
* [[China Criminal Defense Manual - Cases Involving a Possible Death Penalty | Cases Involving a Possible Death Penalty]]
* [[China Criminal Defense Manual - Motions | Motions]]

== Codes ==

* [[China - Law on Lawyers and Legal Representation]]
* [[Constitution of the People's Republic of China]]
* [[Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases]]
* [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]]

== Other Materials ==

* [[Chinese-English Legal Lexicon]]
* [[Chinese Law Primer]]

== Legal Training Resource Center ==
[http://www.ibj.org/elearning eLearning Courses for Chinese lawyers]

*[http://chinadefensewiki.ibj.org/index.php/%E6%B3%95%E5%BE%8B%E6%8F%B4%E5%8A%A9%E8%B5%84%E6%96%99 (???/Chinese Version)]

Inter-American Convention to Prevent and Punish Torture

2010-07-01T14:07:33Z

Mmurray:

The American States signatory to the present Convention,
Aware of the provision of the American Convention on Human Rights that no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment;

Reaffirming that all acts of torture or any other cruel, inhuman, or degrading treatment or punishment constitute an offense against human dignity and a denial of the principles set forth in the Charter of the Organization of American States and in the Charter of the United Nations and are violations of the fundamental human rights and freedoms proclaimed in the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights;

Noting that, in order for the pertinent rules contained in the aforementioned global and regional instruments to take effect, it is necessary to draft an Inter-American Convention that prevents and punishes torture;

Reaffirming their purpose of consolidating in this hemisphere the conditions that make for recognition of and respect for the inherent dignity of man, and ensure the full exercise of his fundamental rights and freedoms,

Have agreed upon the following:

Article 1
The State Parties undertake to prevent and punish torture in accordance with the terms of this Convention.

Article 2
For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.
The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.

Article 3
The following shall be held guilty of the crime of torture:
a. A public servant or employee who acting in that capacity orders, instigates or induces the use of torture, or who directly commits it or who, being able to prevent it, fails to do so.
b. A person who at the instigation of a public servant or employee mentioned in subparagraph (a) orders, instigates or induces the use of torture, directly commits it or is an accomplice thereto.

Article 4
The fact of having acted under orders of a superior shall not provide exemption from the corresponding criminal liability.

Article 5
The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture.
Neither the dangerous character of the detainee or prisoner, nor the lack of security of the prison establishment or penitentiary shall justify torture.

Article 6
In accordance with the terms of Article 1, the States Parties shall take effective measures to prevent and punish torture within their jurisdiction.
The States Parties shall ensure that all acts of torture and attempts to commit torture are offenses under their criminal law and shall make such acts punishable by severe penalties that take into account their serious nature.
The States Parties likewise shall take effective measures to prevent and punish other cruel, inhuman, or degrading treatment or punishment within their jurisdiction.

Article 7
The States Parties shall take measures so that, in the training of police officers and other public officials responsible for the custody of persons temporarily or definitively deprived of their freedom, special emphasis shall be put on the prohibition of the use of torture in interrogation, detention, or arrest.
The States Parties likewise shall take similar measures to prevent other cruel, inhuman, or degrading treatment or punishment.

Article 8
The States Parties shall guarantee that any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case.
Likewise, if there is an accusation or well-grounded reason to believe that an act of torture has been committed within their jurisdiction, the States Parties shall guarantee that their respective authorities will proceed properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process.
After all the domestic legal procedures of the respective State and the corresponding appeals have been exhausted, the case may be submitted to the international fora whose competence has been recognized by that State.

Article 9
The States Parties undertake to incorporate into their national laws regulations guaranteeing suitable compensation for victims of torture.
None of the provisions of this article shall affect the right to receive compensation that the victim or other persons may have by virtue of existing national legislation.

Article 10
No statement that is verified as having been obtained through torture shall be admissible as evidence in a legal proceeding, except in a legal action taken against a person or persons accused of having elicited it through acts of torture, and only as evidence that the accused obtained such statement by such means.

Article 11
The States Parties shall take the necessary steps to extradite anyone accused of having committed the crime of torture or sentenced for commission of that crime, in accordance with their respective national laws on extradition and their international commitments on this matter.

Article 12
Every State Party shall take the necessary measures to establish its jurisdiction over the crime described in this Convention in the following cases:
a. When torture has been committed within its jurisdiction;
b. When the alleged criminal is a national of that State; or
c. When the victim is a national of that State and it so deems appropriate.
Every State Party shall also take the necessary measures to establish its jurisdiction over the crime described in this Convention when the alleged criminal is within the area under its jurisdiction and it is not appropriate to extradite him in accordance with Article 11.
This Convention does not exclude criminal jurisdiction exercised in accordance with domestic law.

Article 13
The crime referred to in Article 2 shall be deemed to be included among the extraditable crimes in every extradition treaty entered into between States Parties. The States Parties undertake to include the crime of torture as an extraditable offence in every extradition treaty to be concluded between them.
Every State Party that makes extradition conditional on the existence of a treaty may, if it receives a request for extradition from another State Party with which it has no extradition treaty, consider this Convention as the legal basis for extradition in respect of the crime of torture. Extradition shall be subject to the other conditions that may be required by the law of the requested State.
States Parties which do not make extradition conditional on the existence of a treaty shall recognize such crimes as extraditable offences between themselves, subject to the conditions required by the law of the requested State.
Extradition shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger, that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad hoc courts in the requesting State.

Article 14
When a State Party does not grant the extradition, the case shall be submitted to its competent authorities as if the crime had been committed within its jurisdiction, for the purposes of investigation, and when appropriate, for criminal action, in accordance with its national law. Any decision adopted by these authorities shall be communicated to the State that has requested the extradition.

Article 15
No provision of this Convention may be interpreted as limiting the right of asylum, when appropriate, nor as altering the obligations of the States Parties in the matter of extradition.

Article 16
This Convention shall not limit the provisions of the American Convention on Human Rights, other conventions on the subject, or the Statutes of the Inter-American Commission on Human Rights, with respect to the crime of torture.

Article 17
The States Parties undertake to inform the Inter-American Commission on Human Rights of any legislative, judicial, administrative, or other measures they adopt in application of this Convention.
In keeping with its duties and responsibilities, the Inter-American Commission on Human Rights will endeavor in its annual report to analyze the existing situation in the member states of the Organization of American States in regard to the prevention and elimination of torture.

Article 18
This Convention is open to signature by the member states of the Organization of American States.

Article 19
This Convention is subject to ratification. The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States.

Article 20
This Convention is open to accession by any other American state. The instruments of accession shall be deposited with the General Secretariat of the Organization of American States.

Article 21
The States Parties may, at the time of approval, signature, ratification, or accession, make reservations to this Convention, provided that such reservations are not incompatible with the object and purpose of the Convention and concern one or more specific provisions.

Article 22
This Convention shall enter into force on the thirtieth day following the date on which the second instrument of ratification is deposited. For each State ratifying or acceding to the Convention after the second instrument of ratification has been deposited, the Convention shall enter into force on the thirtieth day following the date on which that State deposits its instrument of ratification or accession.

Article 23
This Convention shall remain in force indefinitely, but may be denounced by any State Party. The instrument of denunciation shall be deposited with the General Secretariat of the Organization of American States. After one year from the date of deposit of the instrument of denunciation, this Convention shall cease to be in effect for the denouncing State but shall remain in force for the remaining States Parties.

Article 24
The original instrument of this Convention, the English, French, Portuguese, and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American States, which shall send a certified copy to the Secretariat of the United Nations for registration and publication, in accordance with the provisions of Article 102 of the United Nations Charter. The General Secretariat of the Organization of American States shall notify the member states of the Organization and the States that have acceded to the Convention of signatures and of deposits of instruments of ratification, accession, and denunciation, as well as reservations, if any.

Inter-American Convention to Prevent and Punish Torture

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The American States signatory to the present Convention,
Aware of the provision of the American Convention on Human Rights that no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment;
Reaffirming that all acts of torture or any other cruel, inhuman, or degrading treatment or punishment constitute an offense against human dignity and a denial of the principles set forth in the Charter of the Organization of American States and in the Charter of the United Nations and are violations of the fundamental human rights and freedoms proclaimed in the American Declaration of the Rights and Duties of Man and the Universal Declaration of Human Rights;
Noting that, in order for the pertinent rules contained in the aforementioned global and regional instruments to take effect, it is necessary to draft an Inter-American Convention that prevents and punishes torture;
Reaffirming their purpose of consolidating in this hemisphere the conditions that make for recognition of and respect for the inherent dignity of man, and ensure the full exercise of his fundamental rights and freedoms,
Have agreed upon the following:
Article 1
The State Parties undertake to prevent and punish torture in accordance with the terms of this Convention.
Article 2
For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.
The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.
Article 3
The following shall be held guilty of the crime of torture:
a. A public servant or employee who acting in that capacity orders, instigates or induces the use of torture, or who directly commits it or who, being able to prevent it, fails to do so.
b. A person who at the instigation of a public servant or employee mentioned in subparagraph (a) orders, instigates or induces the use of torture, directly commits it or is an accomplice thereto.
Article 4
The fact of having acted under orders of a superior shall not provide exemption from the corresponding criminal liability.
Article 5
The existence of circumstances such as a state of war, threat of war, state of siege or of emergency, domestic disturbance or strife, suspension of constitutional guarantees, domestic political instability, or other public emergencies or disasters shall not be invoked or admitted as justification for the crime of torture.
Neither the dangerous character of the detainee or prisoner, nor the lack of security of the prison establishment or penitentiary shall justify torture.
Article 6
In accordance with the terms of Article 1, the States Parties shall take effective measures to prevent and punish torture within their jurisdiction.
The States Parties shall ensure that all acts of torture and attempts to commit torture are offenses under their criminal law and shall make such acts punishable by severe penalties that take into account their serious nature.
The States Parties likewise shall take effective measures to prevent and punish other cruel, inhuman, or degrading treatment or punishment within their jurisdiction.
Article 7
The States Parties shall take measures so that, in the training of police officers and other public officials responsible for the custody of persons temporarily or definitively deprived of their freedom, special emphasis shall be put on the prohibition of the use of torture in interrogation, detention, or arrest.
The States Parties likewise shall take similar measures to prevent other cruel, inhuman, or degrading treatment or punishment.
Article 8
The States Parties shall guarantee that any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case.
Likewise, if there is an accusation or well-grounded reason to believe that an act of torture has been committed within their jurisdiction, the States Parties shall guarantee that their respective authorities will proceed properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process.
After all the domestic legal procedures of the respective State and the corresponding appeals have been exhausted, the case may be submitted to the international fora whose competence has been recognized by that State.
Article 9
The States Parties undertake to incorporate into their national laws regulations guaranteeing suitable compensation for victims of torture.
None of the provisions of this article shall affect the right to receive compensation that the victim or other persons may have by virtue of existing national legislation.
Article 10
No statement that is verified as having been obtained through torture shall be admissible as evidence in a legal proceeding, except in a legal action taken against a person or persons accused of having elicited it through acts of torture, and only as evidence that the accused obtained such statement by such means.
Article 11
The States Parties shall take the necessary steps to extradite anyone accused of having committed the crime of torture or sentenced for commission of that crime, in accordance with their respective national laws on extradition and their international commitments on this matter.
Article 12
Every State Party shall take the necessary measures to establish its jurisdiction over the crime described in this Convention in the following cases:
a. When torture has been committed within its jurisdiction;
b. When the alleged criminal is a national of that State; or
c. When the victim is a national of that State and it so deems appropriate.
Every State Party shall also take the necessary measures to establish its jurisdiction over the crime described in this Convention when the alleged criminal is within the area under its jurisdiction and it is not appropriate to extradite him in accordance with Article 11.
This Convention does not exclude criminal jurisdiction exercised in accordance with domestic law.
Article 13
The crime referred to in Article 2 shall be deemed to be included among the extraditable crimes in every extradition treaty entered into between States Parties. The States Parties undertake to include the crime of torture as an extraditable offence in every extradition treaty to be concluded between them.
Every State Party that makes extradition conditional on the existence of a treaty may, if it receives a request for extradition from another State Party with which it has no extradition treaty, consider this Convention as the legal basis for extradition in respect of the crime of torture. Extradition shall be subject to the other conditions that may be required by the law of the requested State.
States Parties which do not make extradition conditional on the existence of a treaty shall recognize such crimes as extraditable offences between themselves, subject to the conditions required by the law of the requested State.
Extradition shall not be granted nor shall the person sought be returned when there are grounds to believe that his life is in danger, that he will be subjected to torture or to cruel, inhuman or degrading treatment, or that he will be tried by special or ad hoc courts in the requesting State.
Article 14
When a State Party does not grant the extradition, the case shall be submitted to its competent authorities as if the crime had been committed within its jurisdiction, for the purposes of investigation, and when appropriate, for criminal action, in accordance with its national law. Any decision adopted by these authorities shall be communicated to the State that has requested the extradition.
Article 15
No provision of this Convention may be interpreted as limiting the right of asylum, when appropriate, nor as altering the obligations of the States Parties in the matter of extradition.
Article 16
This Convention shall not limit the provisions of the American Convention on Human Rights, other conventions on the subject, or the Statutes of the Inter-American Commission on Human Rights, with respect to the crime of torture.
Article 17
The States Parties undertake to inform the Inter-American Commission on Human Rights of any legislative, judicial, administrative, or other measures they adopt in application of this Convention.
In keeping with its duties and responsibilities, the Inter-American Commission on Human Rights will endeavor in its annual report to analyze the existing situation in the member states of the Organization of American States in regard to the prevention and elimination of torture.
Article 18
This Convention is open to signature by the member states of the Organization of American States.
Article 19
This Convention is subject to ratification. The instruments of ratification shall be deposited with the General Secretariat of the Organization of American States.
Article 20
This Convention is open to accession by any other American state. The instruments of accession shall be deposited with the General Secretariat of the Organization of American States.
Article 21
The States Parties may, at the time of approval, signature, ratification, or accession, make reservations to this Convention, provided that such reservations are not incompatible with the object and purpose of the Convention and concern one or more specific provisions.
Article 22
This Convention shall enter into force on the thirtieth day following the date on which the second instrument of ratification is deposited. For each State ratifying or acceding to the Convention after the second instrument of ratification has been deposited, the Convention shall enter into force on the thirtieth day following the date on which that State deposits its instrument of ratification or accession.
Article 23
This Convention shall remain in force indefinitely, but may be denounced by any State Party. The instrument of denunciation shall be deposited with the General Secretariat of the Organization of American States. After one year from the date of deposit of the instrument of denunciation, this Convention shall cease to be in effect for the denouncing State but shall remain in force for the remaining States Parties.
Article 24
The original instrument of this Convention, the English, French, Portuguese, and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American States, which shall send a certified copy to the Secretariat of the United Nations for registration and publication, in accordance with the provisions of Article 102 of the United Nations Charter. The General Secretariat of the Organization of American States shall notify the member states of the Organization and the States that have acceded to the Convention of signatures and of deposits of instruments of ratification, accession, and denunciation, as well as reservations, if any.
[Signatories and Ratifications]

Representing Victims of Torture

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Mmurray: /* Codes */

Representing Victims of Torture

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Mmurray: /* 1. An intentional act */

Representing Victims of Torture

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Mmurray: /* 2. Severe pain or suffering */

Representing Victims of Torture

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Mmurray: /* 1. An intentional act */

Representing Victims of Torture

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Mmurray: /* 4. State action */

Representing Victims of Torture

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Mmurray: /* 1. An intentional act */

Representing Victims of Torture

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Mmurray: /* 1. An intentional act */

Representing Victims of Torture

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Mmurray: /* 3. Committed for wrongful purpose */

International Law

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Mmurray: /* Treaties */

==Courts==
[[International Criminal Court]]

== Treaties ==
* [[Convention Against Torture]] and Other Cruel Inhuman or Degrading
Treatment or Punishment
*[[Convention on the Prevention and Punishment of the Crime of Genocide]]
* [[International Covenant on Civil and Political Rights]]
* [[Rome Statute of the International Criminal Court]]
* [[Universal Declaration of Human Rights]]
* [[UN Basic Principles on the Independence of the Judiciary Power]]
*[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]

International Law

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Mmurray: /* Treaties */

==Courts==
[[International Criminal Court]]

== Treaties ==
* [[Convention Against Torture]] and Other Cruel Inhuman or Degrading
Treatment or Punishment
*[[Convention on the Prevention and Punishment of the Crime of Genocide]]
* [[International Covenant on Civil and Political Rights]]
* [[Rome Statute of the International Criminal Court]]
* [[Universal Declaration of Human Rights]]
* [[UN Basic Principles on the Independence of the Judiciary Power]]
*[[Optional Protocol to the Convention against Torture and Oher Cruel, Inhuman or Degrading Treatment or Punishment]]

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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Mmurray:

Adopted on 18 December 2002 at the fifty-seventh session of the General Assembly of the United Nations by resolution A/RES/57/199.

Entered into force on 22 June 2006

PREAMBLE

The States Parties to the present Protocol,

Reaffirming that torture and other cruel, inhuman or degrading treatment or punishment are prohibited and constitute serious violations of human rights,

Convinced that further measures are necessary to achieve the purposes of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Convention) and to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment,

Recalling that articles 2 and 16 of the Convention oblige each State Party to take effective measures to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment in any territory under its jurisdiction,

Recognizing that States have the primary responsibility for implementing those articles, that strengthening the protection of people deprived of their liberty and the full respect for their human rights is a common responsibility shared by all and that international implementing bodies complement and strengthen national measures,

Recalling that the effective prevention of torture and other cruel, inhuman or degrading treatment or punishment requires education and a combination of various legislative, administrative, judicial and other measures,

Recalling also that the World Conference on Human Rights firmly declared that efforts to eradicate torture should first and foremost be concentrated on prevention and called for the adoption of an optional protocol to the Convention, intended to establish a preventive system of regular visits to places of detention,

Convinced that the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment can be strengthened by non-judicial means of a preventive nature, based on regular visits to places of detention, Have agreed as follows:

PART I

General principles

Article 1

The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Article 2

1. A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture (hereinafter referred to as the Subcommittee on Prevention) shall be established and shall carry out the functions laid down in the present Protocol.

2. The Subcommittee on Prevention shall carry out its work within the framework of the Charter of the United Nations and shall be guided by the purposes and principles thereof, as well as the norms of the United Nations concerning the treatment of people deprived of their liberty.

3. Equally, the Subcommittee on Prevention shall be guided by the principles of confidentiality, impartiality, non-selectivity, universality and objectivity.

4. The Subcommittee on Prevention and the States Parties shall cooperate in the implementation of the present Protocol.

Article 3

Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national preventive mechanism).

Article 4

1. Each State Party shall allow visits, in accordance with the present Protocol, by the mechanisms referred to in articles 2 and 3 to any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence (hereinafter referred to as places of detention). These visits shall be undertaken with a view to strengthening, if necessary, the protection of these persons against torture and other cruel, inhuman or degrading treatment or punishment.

2. For the purposes of the present Protocol, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.

PART II

Subcommittee on Prevention

Article 5

1. The Subcommittee on Prevention shall consist of ten members. After the fiftieth ratification of or accession to the present Protocol, the number of the members of the Subcommittee on Prevention shall increase to twenty-five.

2. The members of the Subcommittee on Prevention shall be chosen from among persons of high moral character, having proven professional experience in the field of the administration of justice, in particular criminal law, prison or police administration, or in the various fields relevant to the treatment of persons deprived of their liberty.

3. In the composition of the Subcommittee on Prevention due consideration shall be given to equitable geographic distribution and to the representation of different forms of civilization and legal systems of the States Parties.

4. In this composition consideration shall also be given to balanced gender representation on the basis of the principles of equality and non-discrimination.

5. No two members of the Subcommittee on Prevention may be nationals of the same State.

6. The members of the Subcommittee on Prevention shall serve in their individual capacity, shall be independent and impartial and shall be available to serve the Subcommittee on Prevention efficiently.

Article 6

1. Each State Party may nominate, in accordance with paragraph 2 of the present article, up to two candidates possessing the qualifications and meeting the requirements set out in article 5, and in doing so shall provide detailed information on the qualifications of the nominees.

2.

(a) The nominees shall have the nationality of a State Party to the present Protocol;

(b) At least one of the two candidates shall have the nationality of the nominating State Party;

(c) No more than two nationals of a State Party shall be nominated;

(d) Before a State Party nominates a national of another State Party, it shall seek and obtain the consent of that State Party.

3. At least five months before the date of the meeting of the States Parties during which the elections will be held, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall submit a list, in alphabetical order, of all persons thus nominated, indicating the States Parties that have nominated them.

Article 7

1. The members of the Subcommittee on Prevention shall be elected in the following manner:

(a) Primary consideration shall be given to the fulfilment of the requirements and criteria of article 5 of the present Protocol;

(b) The initial election shall be held no later than six months after the entry into force of the present Protocol;

(c) The States Parties shall elect the members of the Subcommittee on Prevention by secret ballot;

(d) Elections of the members of the Subcommittee on Prevention shall be held at biennial meetings of the States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Subcommittee on Prevention shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of the States Parties present and voting.

2. If during the election process two nationals of a State Party have become eligible to serve as members of the Subcommittee on Prevention, the candidate receiving the higher number of votes shall serve as the member of the Subcommittee on Prevention. Where nationals have received the same number of votes, the following procedure applies:

(a) Where only one has been nominated by the State Party of which he or she is a national, that national shall serve as the member of the Subcommittee on Prevention;

(b) Where both candidates have been nominated by the State Party of which they are nationals, a separate vote by secret ballot shall be held to determine which national shall become the member;

(c) Where neither candidate has been nominated by the State Party of which he or she is a national, a separate vote by secret ballot shall be held to determine which candidate shall be the member.

Article 8

If a member of the Subcommittee on Prevention dies or resigns, or for any cause can no longer perform his or her duties, the State Party that nominated the member shall nominate another eligible person possessing the qualifications and meeting the requirements set out in article 5, taking into account the need for a proper balance among the various fields of competence, to serve until the next meeting of the States Parties, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

Article 9

The members of the Subcommittee on Prevention shall be elected for a term of four years. They shall be eligible for re-election once if renominated. The term of half the members elected at the first election shall expire at the end of two years; immediately after the first election the names of those members shall be chosen by lot by the Chairman of the meeting referred to in article 7, paragraph 1 ( d).

Article 10

1. The Subcommittee on Prevention shall elect its officers for a term of two years. They may be re-elected.

2. The Subcommittee on Prevention shall establish its own rules of procedure. These rules shall provide, inter alia, that:

(a) Half the members plus one shall constitute a quorum;

(b) Decisions of the Subcommittee on Prevention shall be made by a majority vote of the members present;

(c) The Subcommittee on Prevention shall meet in camera.

3. The Secretary-General of the United Nations shall convene the initial meeting of the Subcommittee on Prevention. After its initial meeting, the Subcommittee on Prevention shall meet at such times as shall be provided by its rules of procedure. The Subcommittee on Prevention and the Committee against Torture shall hold their sessions simultaneously at least once a year.

PART III

Mandate of the Subcommittee on Prevention

Article 11

1. The Subcommittee on Prevention shall:

(a) Visit the places referred to in article 4 and make recommendations to States Parties concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

(b) In regard to the national preventive mechanisms:

(i) Advise and assist States Parties, when necessary, in their establishment;

(ii) Maintain direct, and if necessary confidential, contact with the national preventive mechanisms and offer them training and technical assistance with a view to strengthening their capacities;

(iii) Advise and assist them in the evaluation of the needs and the means necessary to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

(iv) Make recommendations and observations to the States Parties with a view to strengthening the capacity and the mandate of the national preventive mechanisms for the prevention of torture and other cruel, inhuman or degrading treatment or punishment;

(c) Cooperate, for the prevention of torture in general, with the relevant United Nations organs and mechanisms as well as with the international, regional and national institutions or organizations working towards the strengthening of the protection of all persons against torture and other cruel, inhuman or degrading treatment or punishment.

Article 12

In order to enable the Subcommittee on Prevention to comply with its mandate as laid down in article 11, the States Parties undertake:

(a) To receive the Subcommittee on Prevention in their territory and grant it access to the places of detention as defined in article 4 of the present Protocol;

(b) To provide all relevant information the Subcommittee on Prevention may request to evaluate the needs and measures that should be adopted to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

(c) To encourage and facilitate contacts between the Subcommittee on Prevention and the national preventive mechanisms;

(d) To examine the recommendations of the Subcommittee on Prevention and enter into dialogue with it on possible implementation measures.

Article 13

1. The Subcommittee on Prevention shall establish, at first by lot, a programme of regular visits to the States Parties in order to fulfil its mandate as established in article 11.

2. After consultations, the Subcommittee on Prevention shall notify the States Parties of its programme in order that they may, without delay, make the necessary practical arrangements for the visits to be conducted.

3. The visits shall be conducted by at least two members of the Subcommittee on Prevention. These members may be accompanied, if needed, by experts of demonstrated professional experience and knowledge in the fields covered by the present Protocol who shall be selected from a roster of experts prepared on the basis of proposals made by the States Parties, the Office of the United Nations High Commissioner for Human Rights and the United Nations Centre for International Crime Prevention. In preparing the roster, the States Parties concerned shall propose no more than five national experts. The State Party concerned may oppose the inclusion of a specific expert in the visit, whereupon the Subcommittee on Prevention shall propose another expert.

4. If the Subcommittee on Prevention considers it appropriate, it may propose a short follow-up visit after a regular visit.

Article 14

1. In order to enable the Subcommittee on Prevention to fulfil its mandate, the States Parties to the present Protocol undertake to grant it:

(a) Unrestricted access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;

(b) Unrestricted access to all information referring to the treatment of those persons as well as their conditions of detention;

(c) Subject to paragraph 2 below, unrestricted access to all places of detention and their installations and facilities;

(d) The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the Subcommittee on Prevention believes may supply relevant information;

(e) The liberty to choose the places it wants to visit and the persons it wants to interview.

2. Objection to a visit to a particular place of detention may be made only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit. The existence of a declared state of emergency as such shall not be invoked by a State Party as a reason to object to a visit.

Article 15

No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the Subcommittee on Prevention or to its delegates any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

Article 16

1. The Subcommittee on Prevention shall communicate its recommendations and observations confidentially to the State Party and, if relevant, to the national preventive mechanism.

2. The Subcommittee on Prevention shall publish its report, together with any comments of the State Party concerned, whenever requested to do so by that State Party. If the State Party makes part of the report public, the Subcommittee on Prevention may publish the report in whole or in part. However, no personal data shall be published without the express consent of the person concerned.

3. The Subcommittee on Prevention shall present a public annual report on its activities to the Committee against Torture.

4. If the State Party refuses to cooperate with the Subcommittee on Prevention according to articles 12 and 14, or to take steps to improve the situation in the light of the recommendations of the Subcommittee on Prevention, the Committee against Torture may, at the request of the Subcommittee on Prevention, decide, by a majority of its members, after the State Party has had an opportunity to make its views known, to make a public statement on the matter or to publish the report of the Subcommittee on Prevention.

PART IV

National preventive mechanisms

Article 17

Each State Party shall maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms for the prevention of torture at the domestic level. Mechanisms established by decentralized units may be designated as national preventive mechanisms for the purposes of the present Protocol if they are in conformity with its provisions.

Article 18

1. The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel.

2. The States Parties shall take the necessary measures to ens ure that the experts of the national preventive mechanism have the required capabilities and professional knowledge. They shall strive for a gender balance and the adequate representation of ethnic and minority groups in the country.

3. The States Parties undertake to make available the necessary resources for the functioning of the national preventive mechanisms.

4. When establishing national preventive mechanisms, States Parties shall give due consideration to the Principles relating to the status of national institutions for the promotion and protection of human rights.

Article 19

The national preventive mechanisms shall be granted at a minimum the power:

(a) To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;

(b) To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;

(c) To submit proposals and observations concerning existing or draft legislation.

Article 20

In order to enable the national preventive mechanisms to fulfil their mandate, the States Parties to the present Protocol undertake to grant them:

(a) Access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;

(b) Access to all information referring to the treatment of those persons as well as their conditions of detention;

(c) Access to all places of detention and their installations and facilities;

(d) The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the national preventive mechanism believes may supply relevant information;

(e) The liberty to choose the places they want to visit and the persons they want to interview;

(f) The right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it.

Article 21

1. No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the national preventive mechanism any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

2. Confidential information collected by the national preventive mechanism shall be privileged. No personal data shall be published without the express consent of the person concerned.

Article 22

The competent authorities of the State Party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures.

Article 23

The States Parties to the present Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms.

PART V

Declaration

Article 24

1. Upon ratification, States Parties may make a declaration postponing the implementation of their obligations under either part III or part IV of the present Protocol.

2. This postponement shall be valid for a maximum of three years. After due representations made by the State Party and after consultation with the Subcommittee on Pre vention, the Committee against Torture may extend that period for an additional two years.

PART VI

Financial provisions

Article 25

1. The expenditure incurred by the Subcommittee on Prevention in the implementation of the present Protocol shall be borne by the United Nations.

2. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Subcommittee on Prevention under the present Protocol.

Article 26

1. A Special Fund shall be set up in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulations and rules of the United Nations, to help finance the implementation of the recommendations made by the Subcommittee on Prevention after a visit to a State Party, as well as education programmes of the national preventive mechanisms.

2. The Special Fund may be financed through voluntary contributions made by Governments, intergovernmental and non-governmental organizations and other private or public entities.

PART VII

Final provisions

Article 27

1. The present Protocol is open for signature by any State that has signed the Convention.

2. The present Protocol is subject to ratification by any State that has ratified or acceded to the Convention. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Convention.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 28

1. The present Protocol shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State ratifying the present Protocol or acceding to it after the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession, the present Protocol shall enter into force on the thirtieth day after the date of deposit of its own instrument of ratification or accession.

Article 29

The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

Article 30

No reservations shall be made to the present Protocol.

Article 31

The provisions of the present Protocol shall not affect the obligations of States Parties under any regional convention instituting a system of visits to places of detention. The Subcommittee on Prevention and the bodies established under such regional conventions are encouraged to consult and cooperate with a view to avoiding duplication and promoting effectively the objectives of the present Protocol.

Article 32

The provisions of the present Protocol shall not affect the obligations of States Parties to the four Geneva Conventions of 12 August 1949 and the Additional Protocols thereto of 8 June 1977, nor the opportunity available to any State Party to authorize the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law.

Article 33

1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to the present Protocol and the Convention. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

2. Such a denunciation shall not have the effect of releasing the St ate Party from its obligations under the present Protocol in regard to any act or situation that may occur prior to the date on which the denunciation becomes effective, or to the actions that the Subcommittee on Prevention has decided or may decide to take with respect to the State Party concerned, nor shall denunciation prejudice in any way the continued consideration of any matter already under consideration by the Subcommittee on Prevention prior to the date on which the denunciation becomes effective.

3. Following the date on which the denunciation of the State Party becomes effective, the Subcommittee on Prevention shall not commence consideration of any new matter regarding that State.

Article 34

1. Any State Party to the present Protocol may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting at the conference shall be submitted by the Secretary-General of the United Nations to all States Parties for acceptance.

2. An amendment adopted in accordance with paragraph 1 of the present article shall come into force when it has been accepted by a two -thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional processes.

3. When amendments come into force, they shall be binding on those States Parties that have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendment that they have accepted.

Article 35

Members of the Subcommittee on Prevention and of the national preventive mechanisms shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions. Members of the Subcommittee on Prevention shall be accorded the privileges and immunities specified in section 22 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946, subject to the provisions of section 23 of that Convention.

Article 36

When visiting a State Party, the members of the Subcommittee on Prevention shall, without prejudice to the provisions and purposes of the present Protocol and such privileges and immunities as they may enjoy:

(a) Respect the laws and regulations of the visited State;

(b) Refrain from any action or activity incompatible with the impartial and international nature of their duties.

Article 37

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States.

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

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Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

Adopted on 18 December 2002 at the fifty-seventh session of the General Assembly of the United Nations by resolution A/RES/57/199.

Entered into force on 22 June 2006

PREAMBLE

The States Parties to the present Protocol,

Reaffirming that torture and other cruel, inhuman or degrading treatment or punishment are prohibited and constitute serious violations of human rights,

Convinced that further measures are necessary to achieve the purposes of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the Convention) and to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment,

Recalling that articles 2 and 16 of the Convention oblige each State Party to take effective measures to prevent acts of torture and other cruel, inhuman or degrading treatment or punishment in any territory under its jurisdiction,

Recognizing that States have the primary responsibility for implementing those articles, that strengthening the protection of people deprived of their liberty and the full respect for their human rights is a common responsibility shared by all and that international implementing bodies complement and strengthen national measures,

Recalling that the effective prevention of torture and other cruel, inhuman or degrading treatment or punishment requires education and a combination of various legislative, administrative, judicial and other measures,

Recalling also that the World Conference on Human Rights firmly declared that efforts to eradicate torture should first and foremost be concentrated on prevention and called for the adoption of an optional protocol to the Convention, intended to establish a preventive system of regular visits to places of detention,

Convinced that the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment can be strengthened by non-judicial means of a preventive nature, based on regular visits to places of detention, Have agreed as follows:

PART I

General principles

Article 1

The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.

Article 2

1. A Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of the Committee against Torture (hereinafter referred to as the Subcommittee on Prevention) shall be established and shall carry out the functions laid down in the present Protocol.

2. The Subcommittee on Prevention shall carry out its work within the framework of the Charter of the United Nations and shall be guided by the purposes and principles thereof, as well as the norms of the United Nations concerning the treatment of people deprived of their liberty.

3. Equally, the Subcommittee on Prevention shall be guided by the principles of confidentiality, impartiality, non-selectivity, universality and objectivity.

4. The Subcommittee on Prevention and the States Parties shall cooperate in the implementation of the present Protocol.

Article 3

Each State Party shall set up, designate or maintain at the domestic level one or several visiting bodies for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (hereinafter referred to as the national preventive mechanism).

Article 4

1. Each State Party shall allow visits, in accordance with the present Protocol, by the mechanisms referred to in articles 2 and 3 to any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence (hereinafter referred to as places of detention). These visits shall be undertaken with a view to strengthening, if necessary, the protection of these persons against torture and other cruel, inhuman or degrading treatment or punishment.

2. For the purposes of the present Protocol, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.

PART II

Subcommittee on Prevention

Article 5

1. The Subcommittee on Prevention shall consist of ten members. After the fiftieth ratification of or accession to the present Protocol, the number of the members of the Subcommittee on Prevention shall increase to twenty-five.

2. The members of the Subcommittee on Prevention shall be chosen from among persons of high moral character, having proven professional experience in the field of the administration of justice, in particular criminal law, prison or police administration, or in the various fields relevant to the treatment of persons deprived of their liberty.

3. In the composition of the Subcommittee on Prevention due consideration shall be given to equitable geographic distribution and to the representation of different forms of civilization and legal systems of the States Parties.

4. In this composition consideration shall also be given to balanced gender representation on the basis of the principles of equality and non-discrimination.

5. No two members of the Subcommittee on Prevention may be nationals of the same State.

6. The members of the Subcommittee on Prevention shall serve in their individual capacity, shall be independent and impartial and shall be available to serve the Subcommittee on Prevention efficiently.

Article 6

1. Each State Party may nominate, in accordance with paragraph 2 of the present article, up to two candidates possessing the qualifications and meeting the requirements set out in article 5, and in doing so shall provide detailed information on the qualifications of the nominees.

2.

(a) The nominees shall have the nationality of a State Party to the present Protocol;

(b) At least one of the two candidates shall have the nationality of the nominating State Party;

(c) No more than two nationals of a State Party shall be nominated;

(d) Before a State Party nominates a national of another State Party, it shall seek and obtain the consent of that State Party.

3. At least five months before the date of the meeting of the States Parties during which the elections will be held, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall submit a list, in alphabetical order, of all persons thus nominated, indicating the States Parties that have nominated them.

Article 7

1. The members of the Subcommittee on Prevention shall be elected in the following manner:

(a) Primary consideration shall be given to the fulfilment of the requirements and criteria of article 5 of the present Protocol;

(b) The initial election shall be held no later than six months after the entry into force of the present Protocol;

(c) The States Parties shall elect the members of the Subcommittee on Prevention by secret ballot;

(d) Elections of the members of the Subcommittee on Prevention shall be held at biennial meetings of the States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Subcommittee on Prevention shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of the States Parties present and voting.

2. If during the election process two nationals of a State Party have become eligible to serve as members of the Subcommittee on Prevention, the candidate receiving the higher number of votes shall serve as the member of the Subcommittee on Prevention. Where nationals have received the same number of votes, the following procedure applies:

(a) Where only one has been nominated by the State Party of which he or she is a national, that national shall serve as the member of the Subcommittee on Prevention;

(b) Where both candidates have been nominated by the State Party of which they are nationals, a separate vote by secret ballot shall be held to determine which national shall become the member;

(c) Where neither candidate has been nominated by the State Party of which he or she is a national, a separate vote by secret ballot shall be held to determine which candidate shall be the member.

Article 8

If a member of the Subcommittee on Prevention dies or resigns, or for any cause can no longer perform his or her duties, the State Party that nominated the member shall nominate another eligible person possessing the qualifications and meeting the requirements set out in article 5, taking into account the need for a proper balance among the various fields of competence, to serve until the next meeting of the States Parties, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.

Article 9

The members of the Subcommittee on Prevention shall be elected for a term of four years. They shall be eligible for re-election once if renominated. The term of half the members elected at the first election shall expire at the end of two years; immediately after the first election the names of those members shall be chosen by lot by the Chairman of the meeting referred to in article 7, paragraph 1 ( d).

Article 10

1. The Subcommittee on Prevention shall elect its officers for a term of two years. They may be re-elected.

2. The Subcommittee on Prevention shall establish its own rules of procedure. These rules shall provide, inter alia, that:

(a) Half the members plus one shall constitute a quorum;

(b) Decisions of the Subcommittee on Prevention shall be made by a majority vote of the members present;

(c) The Subcommittee on Prevention shall meet in camera.

3. The Secretary-General of the United Nations shall convene the initial meeting of the Subcommittee on Prevention. After its initial meeting, the Subcommittee on Prevention shall meet at such times as shall be provided by its rules of procedure. The Subcommittee on Prevention and the Committee against Torture shall hold their sessions simultaneously at least once a year.

PART III

Mandate of the Subcommittee on Prevention

Article 11

1. The Subcommittee on Prevention shall:

(a) Visit the places referred to in article 4 and make recommendations to States Parties concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

(b) In regard to the national preventive mechanisms:

(i) Advise and assist States Parties, when necessary, in their establishment;

(ii) Maintain direct, and if necessary confidential, contact with the national preventive mechanisms and offer them training and technical assistance with a view to strengthening their capacities;

(iii) Advise and assist them in the evaluation of the needs and the means necessary to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

(iv) Make recommendations and observations to the States Parties with a view to strengthening the capacity and the mandate of the national preventive mechanisms for the prevention of torture and other cruel, inhuman or degrading treatment or punishment;

(c) Cooperate, for the prevention of torture in general, with the relevant United Nations organs and mechanisms as well as with the international, regional and national institutions or organizations working towards the strengthening of the protection of all persons against torture and other cruel, inhuman or degrading treatment or punishment.

Article 12

In order to enable the Subcommittee on Prevention to comply with its mandate as laid down in article 11, the States Parties undertake:

(a) To receive the Subcommittee on Prevention in their territory and grant it access to the places of detention as defined in article 4 of the present Protocol;

(b) To provide all relevant information the Subcommittee on Prevention may request to evaluate the needs and measures that should be adopted to strengthen the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment;

(c) To encourage and facilitate contacts between the Subcommittee on Prevention and the national preventive mechanisms;

(d) To examine the recommendations of the Subcommittee on Prevention and enter into dialogue with it on possible implementation measures.

Article 13

1. The Subcommittee on Prevention shall establish, at first by lot, a programme of regular visits to the States Parties in order to fulfil its mandate as established in article 11.

2. After consultations, the Subcommittee on Prevention shall notify the States Parties of its programme in order that they may, without delay, make the necessary practical arrangements for the visits to be conducted.

3. The visits shall be conducted by at least two members of the Subcommittee on Prevention. These members may be accompanied, if needed, by experts of demonstrated professional experience and knowledge in the fields covered by the present Protocol who shall be selected from a roster of experts prepared on the basis of proposals made by the States Parties, the Office of the United Nations High Commissioner for Human Rights and the United Nations Centre for International Crime Prevention. In preparing the roster, the States Parties concerned shall propose no more than five national experts. The State Party concerned may oppose the inclusion of a specific expert in the visit, whereupon the Subcommittee on Prevention shall propose another expert.

4. If the Subcommittee on Prevention considers it appropriate, it may propose a short follow-up visit after a regular visit.

Article 14

1. In order to enable the Subcommittee on Prevention to fulfil its mandate, the States Parties to the present Protocol undertake to grant it:

(a) Unrestricted access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;

(b) Unrestricted access to all information referring to the treatment of those persons as well as their conditions of detention;

(c) Subject to paragraph 2 below, unrestricted access to all places of detention and their installations and facilities;

(d) The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the Subcommittee on Prevention believes may supply relevant information;

(e) The liberty to choose the places it wants to visit and the persons it wants to interview.

2. Objection to a visit to a particular place of detention may be made only on urgent and compelling grounds of national defence, public safety, natural disaster or serious disorder in the place to be visited that temporarily prevent the carrying out of such a visit. The existence of a declared state of emergency as such shall not be invoked by a State Party as a reason to object to a visit.

Article 15

No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the Subcommittee on Prevention or to its delegates any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

Article 16

1. The Subcommittee on Prevention shall communicate its recommendations and observations confidentially to the State Party and, if relevant, to the national preventive mechanism.

2. The Subcommittee on Prevention shall publish its report, together with any comments of the State Party concerned, whenever requested to do so by that State Party. If the State Party makes part of the report public, the Subcommittee on Prevention may publish the report in whole or in part. However, no personal data shall be published without the express consent of the person concerned.

3. The Subcommittee on Prevention shall present a public annual report on its activities to the Committee against Torture.

4. If the State Party refuses to cooperate with the Subcommittee on Prevention according to articles 12 and 14, or to take steps to improve the situation in the light of the recommendations of the Subcommittee on Prevention, the Committee against Torture may, at the request of the Subcommittee on Prevention, decide, by a majority of its members, after the State Party has had an opportunity to make its views known, to make a public statement on the matter or to publish the report of the Subcommittee on Prevention.

PART IV

National preventive mechanisms

Article 17

Each State Party shall maintain, designate or establish, at the latest one year after the entry into force of the present Protocol or of its ratification or accession, one or several independent national preventive mechanisms for the prevention of torture at the domestic level. Mechanisms established by decentralized units may be designated as national preventive mechanisms for the purposes of the present Protocol if they are in conformity with its provisions.

Article 18

1. The States Parties shall guarantee the functional independence of the national preventive mechanisms as well as the independence of their personnel.

2. The States Parties shall take the necessary measures to ens ure that the experts of the national preventive mechanism have the required capabilities and professional knowledge. They shall strive for a gender balance and the adequate representation of ethnic and minority groups in the country.

3. The States Parties undertake to make available the necessary resources for the functioning of the national preventive mechanisms.

4. When establishing national preventive mechanisms, States Parties shall give due consideration to the Principles relating to the status of national institutions for the promotion and protection of human rights.

Article 19

The national preventive mechanisms shall be granted at a minimum the power:

(a) To regularly examine the treatment of the persons deprived of their liberty in places of detention as defined in article 4, with a view to strengthening, if necessary, their protection against torture and other cruel, inhuman or degrading treatment or punishment;

(b) To make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment, taking into consideration the relevant norms of the United Nations;

(c) To submit proposals and observations concerning existing or draft legislation.

Article 20

In order to enable the national preventive mechanisms to fulfil their mandate, the States Parties to the present Protocol undertake to grant them:

(a) Access to all information concerning the number of persons deprived of their liberty in places of detention as defined in article 4, as well as the number of places and their location;

(b) Access to all information referring to the treatment of those persons as well as their conditions of detention;

(c) Access to all places of detention and their installations and facilities;

(d) The opportunity to have private interviews with the persons deprived of their liberty without witnesses, either personally or with a translator if deemed necessary, as well as with any other person who the national preventive mechanism believes may supply relevant information;

(e) The liberty to choose the places they want to visit and the persons they want to interview;

(f) The right to have contacts with the Subcommittee on Prevention, to send it information and to meet with it.

Article 21

1. No authority or official shall order, apply, permit or tolerate any sanction against any person or organization for having communicated to the national preventive mechanism any information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way.

2. Confidential information collected by the national preventive mechanism shall be privileged. No personal data shall be published without the express consent of the person concerned.

Article 22

The competent authorities of the State Party concerned shall examine the recommendations of the national preventive mechanism and enter into a dialogue with it on possible implementation measures.

Article 23

The States Parties to the present Protocol undertake to publish and disseminate the annual reports of the national preventive mechanisms.

PART V

Declaration

Article 24

1. Upon ratification, States Parties may make a declaration postponing the implementation of their obligations under either part III or part IV of the present Protocol.

2. This postponement shall be valid for a maximum of three years. After due representations made by the State Party and after consultation with the Subcommittee on Pre vention, the Committee against Torture may extend that period for an additional two years.

PART VI

Financial provisions

Article 25

1. The expenditure incurred by the Subcommittee on Prevention in the implementation of the present Protocol shall be borne by the United Nations.

2. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Subcommittee on Prevention under the present Protocol.

Article 26

1. A Special Fund shall be set up in accordance with the relevant procedures of the General Assembly, to be administered in accordance with the financial regulations and rules of the United Nations, to help finance the implementation of the recommendations made by the Subcommittee on Prevention after a visit to a State Party, as well as education programmes of the national preventive mechanisms.

2. The Special Fund may be financed through voluntary contributions made by Governments, intergovernmental and non-governmental organizations and other private or public entities.

PART VII

Final provisions

Article 27

1. The present Protocol is open for signature by any State that has signed the Convention.

2. The present Protocol is subject to ratification by any State that has ratified or acceded to the Convention. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

3. The present Protocol shall be open to accession by any State that has ratified or acceded to the Convention.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.

Article 28

1. The present Protocol shall enter into force on the thirtieth day after the date of deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.

2. For each State ratifying the present Protocol or acceding to it after the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession, the present Protocol shall enter into force on the thirtieth day after the date of deposit of its own instrument of ratification or accession.

Article 29

The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.

Article 30

No reservations shall be made to the present Protocol.

Article 31

The provisions of the present Protocol shall not affect the obligations of States Parties under any regional convention instituting a system of visits to places of detention. The Subcommittee on Prevention and the bodies established under such regional conventions are encouraged to consult and cooperate with a view to avoiding duplication and promoting effectively the objectives of the present Protocol.

Article 32

The provisions of the present Protocol shall not affect the obligations of States Parties to the four Geneva Conventions of 12 August 1949 and the Additional Protocols thereto of 8 June 1977, nor the opportunity available to any State Party to authorize the International Committee of the Red Cross to visit places of detention in situations not covered by international humanitarian law.

Article 33

1. Any State Party may denounce the present Protocol at any time by written notification addressed to the Secretary-General of the United Nations, who shall thereafter inform the other States Parties to the present Protocol and the Convention. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

2. Such a denunciation shall not have the effect of releasing the St ate Party from its obligations under the present Protocol in regard to any act or situation that may occur prior to the date on which the denunciation becomes effective, or to the actions that the Subcommittee on Prevention has decided or may decide to take with respect to the State Party concerned, nor shall denunciation prejudice in any way the continued consideration of any matter already under consideration by the Subcommittee on Prevention prior to the date on which the denunciation becomes effective.

3. Following the date on which the denunciation of the State Party becomes effective, the Subcommittee on Prevention shall not commence consideration of any new matter regarding that State.

Article 34

1. Any State Party to the present Protocol may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to the present Protocol with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the States Parties favour such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of two thirds of the States Parties present and voting at the conference shall be submitted by the Secretary-General of the United Nations to all States Parties for acceptance.

2. An amendment adopted in accordance with paragraph 1 of the present article shall come into force when it has been accepted by a two -thirds majority of the States Parties to the present Protocol in accordance with their respective constitutional processes.

3. When amendments come into force, they shall be binding on those States Parties that have accepted them, other States Parties still being bound by the provisions of the present Protocol and any earlier amendment that they have accepted.

Article 35

Members of the Subcommittee on Prevention and of the national preventive mechanisms shall be accorded such privileges and immunities as are necessary for the independent exercise of their functions. Members of the Subcommittee on Prevention shall be accorded the privileges and immunities specified in section 22 of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946, subject to the provisions of section 23 of that Convention.

Article 36

When visiting a State Party, the members of the Subcommittee on Prevention shall, without prejudice to the provisions and purposes of the present Protocol and such privileges and immunities as they may enjoy:

(a) Respect the laws and regulations of the visited State;

(b) Refrain from any action or activity incompatible with the impartial and international nature of their duties.

Article 37

1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States.

Representing Victims of Torture

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Representing Victims of Torture

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Mmurray: /* Interviewing Torture Victims and Gathering Evidence */

Representing Victims of Torture

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Mmurray: /* Common Methods of Torture Around the World */