Pre-Trial Detention - Revision history

IBJadmin at 08:24, 4 April 2013

2013-04-04T08:24:43Z

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			{{Languages\|Pre-Trial Detention}}

	= Background =		= Background =

Ibjadmin: /* Background */

2011-03-30T20:01:00Z

Background

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	= 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 in the traditional criminal justice setting.		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. By some estimates, there as many as three million people held in pre-trial detention at any given time.<ref>World Prison Brief Online (ICPS), http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_stats.php?area=all&category=wb_pretrial</ref> Often, prisoners are held for years without any hope or opportunity for trial. In Nigeria the average period of pre-trial detention while waiting trial is 3.7 years. <ref>Anthony Nwapa, "Building and Sustaining Change: Pretrial Detention Reform in Nigeria" in'' Justice Initiatives: Pretrial Detention'' (New York: Open Society Institute, 2008), 86</ref> In countries with the most broken criminal justice systems, cases may take long periods to resolve. As a result, the pre-trial detention population often swells. In Liberia, for instance, almost 97 percent of all those in prison are pre-trial detainees.<ref>World Prison Brief Online (ICPS), http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_stats.php?area=all&category=wb_pretrial</ref>

			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 in the traditional criminal justice setting.

	Some countries may also permit [[Administrative Detention \| administrative detention]] of suspects that falls outside the scope of this particular article.		Some countries may also permit [[Administrative Detention \| administrative detention]] of suspects that falls outside the scope of this particular article.

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Notes

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	= Notes =		= Notes =
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Notes

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	= Notes =		= Notes =
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Notes

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Notes

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	= Notes =		= Notes =
	~~<references/>~~
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Ibjadmin: /* Background */

2010-12-08T15:08:53Z

Background

← Older revision		Revision as of 17:08, 8 December 2010
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	= 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.		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 in the traditional criminal justice setting.

			Some countries may also permit [[Administrative Detention \| administrative detention]] of suspects that falls outside the scope of this particular article.

	= International Standards: Basic Tenets Protecting Against Pre-trial Detention =		= International Standards: Basic Tenets Protecting Against Pre-trial Detention =

Ibjadmin: /* Discrepancy between country's laws/codes, the international standards and practical implementation */

2010-12-03T08:11:55Z

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

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	=== Discrepancy between country's laws/codes, the international standards and practical implementation ===		=== 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>		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 police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>

	=== Detainment ===		=== Detainment ===

Ibjadmin at 10:20, 18 November 2010

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	* detention prior to trial should only be used where '''lawful''', '''reasonable''' and '''necessary.'''		* 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:		The necessity requirement has been interpreted very narrowly by the Committee. Detention may be necessary:
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	* to prevent the recurrence of crime, or		* 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.		* 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>		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>
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	A new Code of Criminal Procedure will take effect in October 2010.		A new Code of Criminal Procedure will take effect in October 2010.


	'''The Constitution of Georgia'''		'''The Constitution of Georgia'''
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	(1) A person is considered innocent until his/her guilt is proved by a court.		(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>		(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'''		'''The Code of Criminal Procedure of Georgia: 1999 until October, 2010'''
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	''Article 243:''		''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>		(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'''		'''New Code of Criminal Procedure: October 1, 2010'''
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	*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.		*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>		*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 ===		=== 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>		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 ===		=== Discrepancy between country's laws/codes, the international standards and practical implementation ===
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	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>		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 ===		=== Detainment ===
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	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>		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 ===		=== 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>		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 ===		=== 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>		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 ===		=== Detainment ===
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	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>		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 ===		=== 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>		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 ===		=== 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>		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 ===		=== Detainment ===
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	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>		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>

	==Kenya==		==[[Kenya]]==

	===Domestic Constitutional Law===		===Domestic Constitutional Law===
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	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.		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 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?
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	## Nullity Procedure		## 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?		## 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.		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.