Difference between revisions of "Pre-Trial Detention"

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{{Languages|Pre-Trial Detention}}
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= Background =
 
= Background =
  
Pre-trial detention is when a person is held by a governing body for an offense committed against the laws of the state prior to a trial.  Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention.  Many times prisoners are held for years on end without any hope or opportunity for trial. While there are multiple issues from pre-trial detention ranging from inhumane conditions to the length of detention, this page will focus primarily on the determination and length of detention.  
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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>
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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.
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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 =  
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== Universal Declaration of Human Rights ==
 
== 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:  
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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 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 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>  
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# 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 ==
 
== 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>  
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Additionally, the [[United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) | 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 ==
 
== 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>
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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:  
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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.'''
 
* 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:
  
 
* to prevent flight,
 
* to prevent flight,
* interference with evidence or
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* to prevent interference with evidence
* the recurrence of crime, or
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* 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>   
  
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.  
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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 =
 
= 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>
 
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>
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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>
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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>  
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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 =   
 
= 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>
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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>
  
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>
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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):
 
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.
 
# 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>
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# 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 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>
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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>  
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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 =
 
= Case Studies =
   
 
== Rwanda ==
 
'''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>
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== Azerbaijan ==
  
'''Alternative Justice:'''
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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>
  
''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 complaintsThis 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>
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=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===               
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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>
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=== Discrepancy between country's laws/codes, international standards and practical implementation ===
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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> 
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=== Detainment ===
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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>   
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Though bail exists as a remedy to pre-trial detention, it is extremely rareOften, 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>
  
''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 rightsThe 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>
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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 detentionHowever, the Appellate Instance Court's decision is absolute.<ref>International Bridges to Justice: Azerbaijani Justice Maker, July 2010</ref>
  
'''Courts:'''
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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> 
  
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>
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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 ==
 
== 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.
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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.
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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 CCP will take effect in October 2010.
 
  
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A new Code of Criminal Procedure will take effect in October 2010.
  
 
'''The Constitution of Georgia'''
 
'''The Constitution of Georgia'''
Line 97: Line 106:
 
''Article 40''
 
''Article 40''
 
(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.
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(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'''
Line 113: Line 121:
  
 
''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.
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(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'''
  
 
Important changes from current code:   
 
Important changes from current code:   
*Minimum bail has been raised to 1000 GEL (about 500 USD,
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*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.  
 
*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.
 
*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.    
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*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 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.  
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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>   
  
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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 ===
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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.
  
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.
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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> 
  
 
=== Detainment ===
 
=== Detainment ===
  
4) What is the average period of pretrial detention?
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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.
  
The minimum period of pre-trial detention is 48 hours and in this time the court must decide the issue of declaring the person as charged in a crime or free him/her. If a judge makes a decision to declare him/her accused in a crime, he must decide also the issue of the pre-trial detention. In this case the pre-trial detention must be a month and it can be continued twice - firstly, for an additional month and then for 2 months. Totally, it may not exceed 4 months.
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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.  
  
5) What is the longest period of pretrial 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>
  
The longest period of pretrial detention is 4 months. This is the term before the case goes to the court after the completion of the preliminary investigation. Then the case is passed to the court which reviews it and passes a final decision - guilty or not guilty. The period between the completion of the preliminary investigation and making a final judgment by the court, may be extended for additional 5 months of detention. Total period of pre-trial and trial detention until the final decision may be maximum 9 months. However, the final decision can be a guilty or no guilty judgment. In case the court passes a judgment of not guilty and an accused has already been detained for 9 months, she/he can request compensation. 
+
== Indonesia ==
  
6) Does your judicial system permit prisoners to be released on bail or their personal recognizance?
+
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.
  
Yes, bail and personal recognizance are among the preventive measures foreseen by the Code of Criminal Procedure of Georgia.
+
* 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> 
  
            a)      If so, do judges regularly release accused on bail or personal recognizance pending a trial?
+
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> 
  
            Please see the statistics below.
+
=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===
  
            b)      How does an accused person obtain bail?
+
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> 
  
            Bail can be paid by the financial resources and also by the property which will be arrested until the matter of accusation is finally decided. Many people in Georgia have to take bank credits or sell their immovable or mobile property to pay the bail.
+
=== Discrepancy between country's laws/codes, the international standards and practical implementation ===
  
        3. How many accused persons were granted bail in the last year?
+
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> 
  
      Statistical data on applied pretrial preventive measures in 2009
+
=== Detainment ===
  
                                  Source: The Supreme Court of Georgia
+
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. 
Year
 
  
2009
+
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>
Preventive Measures
 
  
Total  
+
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>  
  
16 043
+
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>
Forms of pretrial preventive measures
 
Pretrial detention - arrest Non-custodial measures Bail
 
Total
 
  
8 199
+
== Philippines ==
51.1 % Total 7 844 48. 9 % Total number and %
 
 
 
7 589  - 47.3
 
 
 
In the table it is shown that Custodial preventive measures are applied in 51.1 % of the total number of used preventive measures (16 043) while among the used non-custodial preventive measures (48.9%) Bail is used in 47.3 %.
 
 
 
The paragraph showing the Bail rate needs specific interpretation. The statistical data are provided from the data base of the Supreme Court of Georgia which fixes all the applied bail case in its data base.
 
 
 
However, the statistical data showing the bail rate in the non-custodial measures are not so high as shown because it contains data from the first registration of bail which is not always paid and an accused is not released under bail in reality.
 
 
 
In practice we have 2 specific aspects which have an important impact on miscalculation of the bail number:
 
 
 
  1. It happens in most cases that a prosecutor requires to release an accused under bail and the court confirms the petition on bail but applies a pretrial detention (arrest) until the amount of money of bail completely or 50% of total amount is not paid by an accused. In many cases the accused can not afford to pay the bail and they stay in custody. This is called - Bail custody.
 
  2. And another most important influential factor - plea bargaining deals. In practice, the accused often receive confirmation of bail but then in order to avoid long trial proceedings, make peal bargaining agreements and the amount of money of bail is transformed as a fine (fine is a part of the plea bargaining agreement in almost all cases).
 
 
 
In the mentioned cases we have a situation when a bail is applied and documented in the statistical data base but not really realized. According to the Statistical data of the Supreme Court you may consider that the number of using bail is satisfactory but the indicator is not grounded on real applications of bail.
 
 
 
N.B. I can require public information from the Supreme Court of Georgia on the exact number of bail custody and from it I can shape real data of the used bail. However, the requesting public information will take about 2 weeks. 
 
 
 
7) If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge prolonged detention of your client?
 
 
 
Plea bargaining deal is a newly-established (since 2005) institution in the Code of Criminal Procedure and legal practice in Georgia. If an accused confesses, he/she receives fast trial proceeding.
 
 
 
Plea bargain is one of the principles of the criminal procedure of Georgia and aims to ensure fast and effective justice.
 
 
 
Plea bargain is a ground for deciding a criminal case without an essential review. The plea bargain is grounded on an agreement between an accused and a prosecutor on guilty plea or measure of punishment. Before the start of trial competition during the essential review of a criminal case, a judge is authorized to offer the parties to make a plea bargaining agreement.
 
 
 
According to an agreement on guilty plea an accused confesses the crime and in case of an agreement an accused does not plead guilty, however, does not contradicts the accusation and agrees with a prosecutor on a particular measure of criminal responsibility.
 
 
 
Finally, a plea bargaining agreement is submitted to the court and a judge reviews the lawfulness of the agreement and if the agreement is not a result of pressure, misunderstanding or any other unlawful promises, confirms it and passes a final decision on the ground of the agreement.
 
 
 
Plea bargaining agreement is made in written and confirmed on the open trial. Plea bargaining may be made as during the preliminary investigation as well as during the trial proceedings at the courts of first and upper instances.
 
 
 
A convict may submit an appeal against the plea bargaining agreement in 15 days after the confirmation by the court. A prosecutor must notify the damaged party (who received damage as a result of a crime) about the plea bargaining agreement. However, the damaged party has no right to lodge a complaint against the agreement.
 
 
 
After the mentioned 15 days the conditions confirmed by the plea bargaining agreement come into force and the judgment is executed.
 
Statistical data - source: Supreme Court o Georgia
 
 
 
on the cases ended with the plea bargaining agreements in the courts of first instance
 
Category 2009 2008 Total number of cases and %
 
Case Persons Case Persons 2008 2009
 
Plea bargaining agreements         9207
 
 
 
52,2 %
 
9073
 
 
 
58, 2 %
 
  - without plea 4470 5220 3861 4576
 
  - with plea 4612 5817 5353 6927
 
The judgment with the plea bargaining agreement 9073 11027 9207 11513
 
The court rejected the plea bargaining agreement 17 20 15 19
 
 
   
 
   
 +
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> 
  
The plea bargaining is widely used on criminal cases and the amount of money as fine is determined according to heaviness of a committed crime and social state of an accused.             
+
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.
 
 
Examples:
 
 
 
            a)      Plead Guilty (a typical remedy in common law systems):  If the client confesses, how quickly is the confession processed?
 
 
 
            See 7.
 
 
 
            b)      Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
 
 
 
            N/A
 
 
 
            c)      Motion to Dismiss for lack of speedy trial
 
 
 
            N/A
 
 
 
            d)    Dismissal of charges in the interest of justice
 
 
 
            N/A
 
 
 
            e)      Nullity Procedure
 
 
 
            N/A
 
 
 
            f)      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? 
 
 
 
            N/A
 
 
 
            g)      Any other procedural mechanisms by which you could improve the outcome of your client's case?
 
 
 
8) If you have adopted any strategies in the past to reduce pretrial detention rates, please explain and identify whether the strategy was successful.  If not, how could the strategy have been improved?
 
 
 
The strategy for reducing pretrial detentions can be improved by:
 
 
 
    * Analyzing the domestic legislation inline with the UN and other international treaties and preparing legislative recommendations for changes and amendments;
 
    * Issuing a guideline book which will contain the domestic and international legislations and guideline principles on handling the issues of pretrial detentions for improving the practice and contributing to applying non-custodial pretrial preventive measures and reviewing the cases according to the requirements of the international treaties to which Georgia is one of the member States (UN Convention on the Child's Rights, UN Declaration on Human Rights, European Convention of Human Rights and Fundamental Freedoms);
 
 
 
9) Is it possible to file a class action lawsuit on behalf of all pretrial detainees that have been held beyond reasonable limits?
 
 
 
G.K was detained for committing a financial crime for which the Criminal Code of Georgia (Art. 210) foresees: restraint of liberty, restraint of activity, or deprivation of liberty up to 4 years.
 
 
 
The detainee was presented to the court which satisfied the petition of a prosecutor and imposed him pretrial detention for 2 months on the ground that he would flee and destroy the evidence and interfere the establishment of the truth on the case. However, during the detention G.K. did not try to avoid presenting before the law enforcing body, had never been convicted or accused, had a family and a permanent residence, and the investigating body did not submit any convincing proof to the court that he would flee or destroy the evidence or interfere the establishment of the truth on the case.
 
 
 
In the next month all the existing evidence was collected and all the existing witnesses gave their official testimonies. There was left no possibility and no danger that anyone could have any influence on destroying the evidence or interfere the establishing the truth on the case. The defense submitted a petition to change the arrest as a preventive measure with non-custodial measure because there was no ground for continuation of the detention.
 
 
 
The court reviewed the petition and rejected it. The rejection f the court of first instance was appealed to the Appellate Court but it left the decision of the court of first instance in force and rejected to satisfy the appeal of the accused and his defender.
 
 
 
This case can be reviewed as a class case how the pretrial detention is applied and reviewed in Georgia. Almost all the criminal cases are reviewed in this way and the courts do not essentially discuss the lawfulness and reasonability of imposing arrest as a preventive measure.
 
 
 
The specific problems:
 
 
 
    * The legislative gaps (absence of Habeas Corpus) and inadequacy of the legal practice to the international standards;
 
    * Lack of independence of the judicial authorities;
 
    * Lack of knowledge and public awareness about human rights         
 
 
 
10) What other strategies (media, roundtables, etc) can be effective means to reduce pretrial detention rates for more than one defendant at a time?
 
 
 
Other strategy is related to conducting information campaign for raising public awareness and establishing common understanding and practice on reasonable application of pretrial detention among the key actors of legal enforcing bodies:
 
 
 
    * Preparing radio and TV programs for public discussions
 
    * Issuing information materials such as brochures and leaflets;
 
    * Organizing roundtable discussions between representatives of NGO and State institutions who work in the field of human rights protection
 
 
 
Forms of pretrial preventive measures (Art.152)
 
 
 
  1. Pretrial detention - arrest;
 
  2. Bail;
 
  3. Personal recognizance;
 
  4. Bringing a juvenile under personal supervision;
 
  5. Bringing a military employee under the supervision
 
 
 
== 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> 
 
  
 +
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 ===
  
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>
+
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 police and military elements.<ref>International Bridges to Justice: Philippine Justice Maker, July 2010</ref>
 
 
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 ===
 
=== 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.
+
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> 
  
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>
+
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>
  
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> 
+
== [[Rwanda]] ==
  
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>
+
=== 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>
  
== Philippines ==
+
=== Alternative Justice Practices ===  
 
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.
+
''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> 
  
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>  
+
''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 ===
  
=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===
+
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>
 
 
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>  
 
  
 +
==[[Kenya]]==
  
=== Discrepancy between country's laws/codes, the international standards and practical implementation ===  
+
===Domestic Constitutional Law===
  
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>
+
Article  51 of the Constitution provides that  “A person who is detained, held in custody or imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in  custody or imprisoned”
  
 +
====Freedom from Prolonged Pre-Trial Detention====
  
=== Detainment ===
+
The law puts in place mechanisms that ensure that a defendant is not subjected to unlawful pre-trial detention. These mechanisms include: (i) the granting of bail and, (ii) the requirement that the defendant be released promptly, if he/she is not charged within the time prescribed under law.
  
Average detainment is approximately one month until an arraignment.  Generally prisoners are able to be released on bail or personal recognizanceIn 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> 
+
By virtue of Article 49 of the Constitution a defendant is to be charged or informed of the reason for the detention continuing, or to be released at the first court appearanceSimilarly, Section 36 of the CPC provides that a person who is charged with a non-serious offence (i.e, all offenses other than murder, treason , armed robbery and attempted armed robbery) shall be released on bail if it is impracticable to bring him/her before an appropriate subordinate court within twenty-four hours after he has been so taken into custody,  
  
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>
+
Following an arrest with a warrant, the police officer or other official executing the warrant is required to bring the person arrested before the court without unnecessary delay. (See, section 108 of the CPC). In cases where a person is arrested without a warrant, Section 123 of the CPC requires that the person shall be granted bail or released upon executing a bond.
         
 
  
 
= Practical Tips for Lawyers =
 
= 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.   
+
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 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 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?
 
# 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?
+
# 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?
 
## 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?   
 
## 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:  
+
# 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?
 
## 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)
 
## Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
Line 378: Line 251:
 
## 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.
 +
 +
=Practical Methods of Reducing Pre-Trial Detention Rates=
 +
 +
High pre-trial detention rates produce unnecessary suffering on behalf of defendants who are forced to remain in overcrowded and unsanitary conditions. These individuals force the government to incur unnecessary spending. Prison overcrowind can be mitigated by the construction of new facilities but the sustainable solution calls for more innovative approaches to pre-trial detention. The following are some of the new approaches used around the world to reduce or eliminate custodial sentencing:
  
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.
+
*Increased use of '''community service''' instead of imprisonment
 +
*'''Suspended sentences'''
 +
*'''Plea bargaining'''
 +
*'''Reprimand'''
 +
*'''Semi-Liberty''' - Defendant is permitted to maintain professional job, take care of family, receive education or training but must otherwise reside in prison <Ref>See, Cambodia Code of Criminal Procedure Articles 127-131</ref>
 +
*'''Split sentences''' where an individual spends half time in prison and half outside of prison <Ref>See, Cambodia Code of Criminal Procedure Articles 132-135</ref>
 +
* Methods of diverting cases from the criminal defense system and into '''rehabilitation programs'''.
  
 
= Notes =
 
= Notes =
<references/>
+
{{Reflist|2}}

Latest revision as of 09:24, 4 April 2013

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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. By some estimates, there as many as three million people held in pre-trial detention at any given time.[1] 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. [2] 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.[3]

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 of suspects that falls outside the scope of this particular article.

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:

  1. there are reasonable grounds to believe the alleged perpetrator committed a crime,
  2. there is a danger the alleged offender will flee or
  3. there is a danger that the course of justice will be seriously obstructed if the alleged offender is freed.[4]

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.[5]

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."[6]

The above provision, along with the Universal Declaration of Human Rights has been interpreted by the UN Human Rights Committee[7] 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.[8]

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.[9] 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.[10] 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.[11]

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.[12] What constitutes a reasonable amount of time is assessed within the context of each individual case.[13]

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.[14]

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.[15] 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.[16]

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.[17] 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.[18]

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."[19]

In addition, the ICCPR states in Article 9(4):

  1. 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.
  2. 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.[20]

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.[21]

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.[22]

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.[23]

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.[24]

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.[25]

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.[26]

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.[27]

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.[28]

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. [29]

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.[30]

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.[31]

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.[32]

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.[33]

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.[34]

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.[35]

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.[36]

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.[37]

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.[38]

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.[39]

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.[40]

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.[41]

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.[42]

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.[43]

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.[44]

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.[45]

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.[46]

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.[47]

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.[48]

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 police and military elements.[49]

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.[50]

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.[51] 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).[52]

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.[53]

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.[54]

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.[55]

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.[56]

Kenya

Domestic Constitutional Law

Article 51 of the Constitution provides that “A person who is detained, held in custody or imprisoned under the law, retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned”

Freedom from Prolonged Pre-Trial Detention

The law puts in place mechanisms that ensure that a defendant is not subjected to unlawful pre-trial detention. These mechanisms include: (i) the granting of bail and, (ii) the requirement that the defendant be released promptly, if he/she is not charged within the time prescribed under law.

By virtue of Article 49 of the Constitution a defendant is to be charged or informed of the reason for the detention continuing, or to be released at the first court appearance. Similarly, Section 36 of the CPC provides that a person who is charged with a non-serious offence (i.e, all offenses other than murder, treason , armed robbery and attempted armed robbery) shall be released on bail if it is impracticable to bring him/her before an appropriate subordinate court within twenty-four hours after he has been so taken into custody,

Following an arrest with a warrant, the police officer or other official executing the warrant is required to bring the person arrested before the court without unnecessary delay. (See, section 108 of the CPC). In cases where a person is arrested without a warrant, Section 123 of the CPC requires that the person shall be granted bail or released upon executing a bond.

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.

  1. 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?
  2. How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
  3. How long has your client been held and what is the average period of pretrial detention there?
  4. Does your judicial system permit prisoners to be released on bail or for personal recognizance?
    1. If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
    2. How can your client obtain bail?
  5. 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:
    1. 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?
    2. Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
    3. Motion to Dismiss for lack of speedy trial
    4. Dismissal of charges in the interest of justice
    5. Nullity Procedure
    6. 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.

Practical Methods of Reducing Pre-Trial Detention Rates

High pre-trial detention rates produce unnecessary suffering on behalf of defendants who are forced to remain in overcrowded and unsanitary conditions. These individuals force the government to incur unnecessary spending. Prison overcrowind can be mitigated by the construction of new facilities but the sustainable solution calls for more innovative approaches to pre-trial detention. The following are some of the new approaches used around the world to reduce or eliminate custodial sentencing:

  • Increased use of community service instead of imprisonment
  • Suspended sentences
  • Plea bargaining
  • Reprimand
  • Semi-Liberty - Defendant is permitted to maintain professional job, take care of family, receive education or training but must otherwise reside in prison [57]
  • Split sentences where an individual spends half time in prison and half outside of prison [58]
  • Methods of diverting cases from the criminal defense system and into rehabilitation programs.

Notes

  1. World Prison Brief Online (ICPS), http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_stats.php?area=all&category=wb_pretrial
  2. Anthony Nwapa, "Building and Sustaining Change: Pretrial Detention Reform in Nigeria" in Justice Initiatives: Pretrial Detention (New York: Open Society Institute, 2008), 86
  3. World Prison Brief Online (ICPS), http://www.kcl.ac.uk/depsta/law/research/icps/worldbrief/wpb_stats.php?area=all&category=wb_pretrial
  4. Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.
  5. Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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.
  15. 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.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. International Bridges to Justice: Azerbaijani Justice Maker, July 2010
  24. International Bridges to Justice: Azerbaijani Justice Maker, July 2010
  25. International Bridges to Justice: Azerbaijani Justice Maker, July 2010
  26. International Bridges to Justice: Azerbaijani Justice Maker, July 2010
  27. International Bridges to Justice: Azerbaijani Justice Maker, July 2010
  28. International Bridges to Justice: Azerbaijani Justice Maker, July 2010
  29. International Bridges to Justice: Azerbaijani Justice Maker, July 2010
  30. International Bridges to Justice: Azerbaijani Justice Maker, July 2010
  31. International Bridges to Justice: Georgian Justice Maker, July 2010
  32. International Bridges to Justice: Georgian Justice Maker, July 2010
  33. International Bridges to Justice: Georgian Justice Maker, July 2010
  34. International Bridges to Justice: Georgian Justice Maker, July 2010
  35. International Bridges to Justice: Georgian Justice Maker, July 2010
  36. International Bridges to Justice: Georgian Justice Maker, July 2010
  37. International Bridges to Justice: Georgian Justice Maker, July 2010
  38. International Bridges to Justice: Georgian Justice Maker, July 2010
  39. International Bridges to Justice: Indonesian Justice Maker, July 2010
  40. International Bridges to Justice: Indonesian Justice Maker, July 2010
  41. International Bridges to Justice: Indonesian Justice Maker, July 2010
  42. International Bridges to Justice: Indonesian Justice Maker, July 2010
  43. International Bridges to Justice: Indonesian Justice Maker, July 2010
  44. International Bridges to Justice: Indonesian Justice Maker, July 2010
  45. International Bridges to Justice: Indonesian Justice Maker, July 2010
  46. International Bridges to Justice: Philippine Justice Maker, July 2010
  47. International Bridges to Justice: Philippine Justice Maker, July 2010
  48. International Bridges to Justice: Philippine Justice Maker, July 2010
  49. International Bridges to Justice: Philippine Justice Maker, July 2010
  50. International Bridges to Justice: Philippine Justice Maker, July 2010
  51. International Bridges to Justice: Philippine Justice Maker, July 2010
  52. International Bridges to Justice: Philippine Justice Maker, July 2010
  53. US State Department: Country Reports. Rwanda, 21 June 2010.
  54. US State Department: Country Reports. Rwanda, 21 June 2010.
  55. US State Department: Country Reports. Rwanda, 21 June 2010.
  56. US State Department: Country Reports. Rwanda, 21 June 2010.
  57. See, Cambodia Code of Criminal Procedure Articles 127-131
  58. See, Cambodia Code of Criminal Procedure Articles 132-135