Difference between revisions of "Pre-Trial Detention"

From Criminal Defense Wiki
Jump to: navigation, search
Line 40: Line 40:
  
 
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>
 
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> 
  
  

Revision as of 15:03, 22 July 2010

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.

International Standards for Pretrial Detention

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. a danger that the course of justice will be seriously interfered with if the alleged offender is free.[1]

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.[2]

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."[3]

The above provision, along with the Universal Declaration of Human Rights has been interpreted by the UN Human Rights Committee[4] to mean that:

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


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

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


The severity of a crime or the need for continued investigation are not enough to justify pre-trial detention alone.[5]

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.[6] 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.[7] 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.[8]

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.[9]

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.[10]

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.[11] 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.[12]


Country Codes and Practices

Burundi

Cambodia

China

India

Kenya

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.[13]

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.[14]

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.[15]

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.[16]

Vietnam

Zimbabwe

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 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?
    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 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:
    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 additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.

Notes

  1. Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.
  2. Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders.
  3. Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.
  4. 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.
  5. Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.
  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. Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.
  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. Footnote 44.
  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. US State Department: Country Reports. Rwanda, 21 June 2010.
  14. US State Department: Country Reports. Rwanda, 21 June 2010.
  15. US State Department: Country Reports. Rwanda, 21 June 2010.
  16. US State Department: Country Reports. Rwanda, 21 June 2010.