Difference between revisions of "Pre-Trial Detention"

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1) How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? 
 
 
2) How are the above terms "lawful, reasonable and necessary" interpreted and do they have any impact?
 
 
3) Is there a large discrepancy between your country's laws/codes, the international standards and practical implementation?
 
 
4) What is the average period of pretrial detention?
 
 
5) What is the longest period of pretrial detention?
 
 
6) Does your judicial system permit prisoners to be released on bail or their personal recognizance?
 
 
a) If so, do judges regularly release accused on bail or personal recognizance pending a trial?
 
b) How does an accused person obtain bail? 
 
c) How many accused persons were granted bail in the last year?
 
 
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?
 
 
Examples:
 
a) Plead Guilty (a typical remedy in common law systems):  If the client confesses, how quickly is the confession processed?
 
b) Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
 
c) Motion to Dismiss for lack of speedy trial
 
d) Dismissal of charges in the interest of justice
 
e) Nullity Procedure
 
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?
 
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?
 
 
9) Is it possible to file a class action lawsuit on behalf of all pretrial detainees that have been held beyond reasonable limits?
 
 
10) What other strategies (media, roundtables, etc) can be effective means to reduce pretrial detention rates for more than one defendant at a time?
 
  
 
== Rwanda ==
 
== Rwanda ==
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When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors.  Use the question 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 question 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 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?
+
**1) 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?  
 
 
*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?
+
**2) How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?  
  
*4) Does your judicial system permit prisoners to be released on bail or their personal recognizance?
+
**3) How long has your client been held and what is the average period of pretrial detention there?
  
a) If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
+
**4) Does your judicial system permit prisoners to be released on bail or their personal recognizance?
b) How can your client obtain bail?
 
  
 +
***a) If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
 +
***b) How can your client obtain bail? 
  
 
*5) 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?
 
*5) 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:  
+
Examples:  
a) 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?
+
***a) 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?
b) Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
+
***b) Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
c) Motion to Dismiss for lack of speedy trial
+
***c) Motion to Dismiss for lack of speedy trial
d) Dismissal of charges in the interest of justice
+
***d) Dismissal of charges in the interest of justice
e) Nullity Procedure
+
***e) Nullity Procedure
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?
+
***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?
  
  
 
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.
 
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.

Revision as of 18:02, 21 July 2010

International Standards for Pretrial Detention: 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) a danger that the course of justice will be seriously interfered with if the alleged offender is free (8th UN Congress on the Prevention of Crime and Treatment of Offenders). UN 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. Additionally, 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.


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. (US State Dept.)

Alternative Justice:

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.

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

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.


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 question 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 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?
    • 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 their personal recognizance?
      • a) If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
      • b) How can your client obtain bail?
  • 5) 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:

      • a) 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?
      • b) Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
      • c) Motion to Dismiss for lack of speedy trial
      • d) Dismissal of charges in the interest of justice
      • e) Nullity Procedure
      • 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?


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.