Difference between revisions of "Pre-Trial Detention"

From Criminal Defense Wiki
Jump to: navigation, search
Line 116: Line 116:
  
  
 +
'''New Code of Criminal Procedure: October 1, 2010'''
  
 +
Important changes from current code: 
 +
*Minimum bail has been raised to 1000 GEL (about 500 USD,
 +
*The general length for detention prior to judgment is 9 months.  After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
 +
*Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
 +
*Preventative arrest may only be appealed once.  One the Appellate Court has reviewed the appeal, the decision issued is final.  The court is not required to conduct a trial or hear witnesses in making a decision.   
  
  
New Code of Criminal Procedure - will come in force from October 1, 2010
+
=== Requirements of "lawful, reasonable and necessary:" interpretation and impact ===               
  
According to the new Code of Criminal Procedure the forms of preventive measures and procedures of pretrial detention and bail are similar to the current CCP. However, there are some important changes, as below:
+
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.  
  
- The minimum amount of money for bail is 1 000 GEL (about 500 USD);
 
  
- Until an accused pays the established amount for bail, he/she is under bail arrest;
+
=== Discrepancy between country's laws/codes, the international standards and practical implementation ===
  
- General term for arrest (before the concluding judgment) is 9 months. After this period an accused must be released even if the court has not decided his/her charge, except the case when an accused or his/her defender applies to the court for prolongation of the term of arrest for obtaining adequate time to prove the innocence.
+
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.
  
- Term of pretrial detention must not exceed 60 days. Only an accused or his/her legal defender may submit a request for reasonable prolongation of this term.
+
=== Detainment ===
 
 
- The arrest as a preventive measure may be appealed only once to the Appellate Court. The Appellate Court reviews the appeal without hear trial and the decision is final und is not a subject to any more appeal.   
 
 
 
2) How are the above terms "lawful, reasonable and necessary" interpreted and do they have any impact?               
 
 
 
                    The Code of Criminal Procedure of Georgia
 
 
 
Article7. Lawfulness and natural human rights
 
 
 
1. An investigator, a prosecutor, a judge, a court, physical and legal persons and other participants of the criminal proceedings must secure the Constitution of Georgia, the Code and other laws.
 
 
 
2. The rule for proceeding and reviewing criminal cases, regulated by the Constitution and criminal legislation of Georgia is equally obligatory for all the participants of the criminal proceeding.
 
 
 
6. Unlawfully obtained evidence has no force. 
 
 
 
Article 8. Independence and superiority of the judicial authority
 
 
 
1. The judicial authority expresses the sovereign will of the Georgian people and is realized only by the domestic courts.
 
 
 
5. Justice is realized according to the legally established norms and regulations. No one has right to conduct a supervision over the implementation of the judicial authority and the decision making process of the courts.
 
 
 
Article 9. Equality before the law and the judiciary
 
 
 
1. Everyone is equal before the law and the judiciary despite of his/her race, nationality, language, social state and title, place of residence, religion and other circumstances.
 
 
 
Article 10. Presumption of Innocence
 
 
 
1. An accused is considered innocent his/her guilt is not established by the judgment of guilty issued by the court.
 
 
 
2. No one is obliged to prove his/her innocence. The burden of proof is on the prosecution. The prosecutor has right to reject the accusation. 
 
 
 
                                          "Reasonability" and "Necessity"
 
 
 
The terms - reasonable (reasonability) and necessary (necessity) - are not interpreted in line with the international human rights standards in the Georgian criminal procedure because the terms and conditions of pretrial detention and other procedural measures are fixed and mostly do not substantiate to changes, for example, the conditions of detention are listed in the Code of Criminal Procedure of Georgia and there is no reasonable discretion to change them in any particular case.
 
 
 
New Code of Criminal Procedure - will come in force from October 1, 2010
 
 
 
According to the new Code of Criminal Procedure the forms of preventive measures and procedures of pretrial detention and bail are similar to the current CCP. However, there are some important changes, as below:
 
 
 
- The minimum amount of money for bail is 1 000 GEL (about 500 USD);
 
 
 
- Until an accused pays the established amount for bail, he/she is under bail arrest;
 
 
 
- General term for arrest (before the concluding judgment) is 9 months. After this period an accused must be released even if the court has not decided his/her charge, except the case when an accused or his/her defender applies to the court for prolongation of the term of arrest for obtaining adequate time to prove the innocence.
 
 
 
- Term of pretrial detention must not exceed 60 days. Only an accused or his/her legal defender may submit a request for reasonable prolongation of this term.
 
 
 
- The arrest as a preventive measure may be appealed only once to the Appellate Court. The Appellate Court reviews the appeal without hear trial and the decision is final und is not a subject to any more appeal.   
 
 
 
3) Is there a large discrepancy between your country's laws/codes, the international standards and practical implementation?
 
 
 
First of all, it should be noted that the Georgian criminal legislation does not include right to a writ of Habeas Corpus which aims to implement judicial control on applying arrest as a preventive measure. The absence of such effective and fast judicial control may make other procedural guarantees useless and ineffective.
 
 
 
The Constitution of Georgia declares that personal freedom may not be restraint without a court decision. However, the Constitution and the criminal legislation of Georgia provide the restricted judicial control on arrest as a preventive measure. An accused and his/her defender can only once appeal the decision on arrest to the Appellate Court. Also the Code of criminal Procedure foresees a right to appeal arrest as a preventive measure but it does not mentions any particular conditions about when and in which intervals the defense party may submit an appeal against arrest as a preventive measure.
 
 
 
According to the Code of Criminal Procedure of Georgia (Art. 140), during the period from the pretrial detention to the completion of the preliminary investigation, the defense party may appeal to the court to change or terminate arrest as a preventive measure. However, the defense party should mention to the new essential circumstances which have not been reviewed by the court during the decision-making process on pretrial detention. Here we can see that the burden of proof is imposed on an accused.
 
 
 
Habeas Corpus foresees that an accused can apply to the court to implement judicial control on the detention and she/he should represent any proof as Prima Facie and the responding State must substantiate lawfulness of the decision on pretrial detention.
 
 
 
According to the current CCP, pretrial detention may last maximum 4 months and after transferring it to the trial review the term can be prolonged maximum 5 months. So, total term from the moment of imposing an arrest (pretrial detention) to the moment of transferring the case for trial proceeding may be 9 months.
 
 
 
According to the new CCP (entering the force from October 1, 2010) the term of pretrial detention is 2 months and after transferring it to the court it may be extended up to 7 months, so, total term from the moment of imposing an arrest (pretrial detention) to the moment of transferring the case for trial proceeding stays 9 months.
 
 
 
The CCP of Georgia does not foresee a possibility to submit an appeal against the trial detention before the final judgment and the imposed arrest as a preventive measure is left beyond the judicial control.
 
  
 
4) What is the average period of pretrial detention?
 
4) What is the average period of pretrial detention?

Revision as of 09:02, 23 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: 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. 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] A reasonable amount of time is assessed in each individual case.[10]

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.[11]

Furthermore, the Committee has provided guidelines for States regarding pre-trial detention.[12] 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.[13]

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.[14] 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.[15]

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."[16]

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 person without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.[17]

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.[18]

Article 9(4) applies to all detention, including detention ordered by an administrative body or authority.[19]

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.[20]

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.[21]

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.[22]

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.[23]

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.

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.

A new CCP 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.


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.


New Code of Criminal Procedure: October 1, 2010

Important changes from current code:

  • Minimum bail has been raised to 1000 GEL (about 500 USD,
  • The general length for detention prior to judgment is 9 months. After 9 months, the accused must be released even if the court has not settled the charge, except when the accused has petitioned the court for additional time to prove innocence.
  • Pre-trial Detention must not exceed 60 days. Only the accused may petition to prolong detention.
  • Preventative arrest may only be appealed once. One the Appellate Court has reviewed the appeal, the decision issued is final. The court is not required to conduct a trial or hear witnesses in making a decision.


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.


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.

Detainment

4) What is the average period of pretrial detention?

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.

5) What is the longest period of pretrial detention?

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.

6) Does your judicial system permit prisoners to be released on bail or their personal recognizance?

Yes, bail and personal recognizance are among the preventive measures foreseen by the Code of Criminal Procedure of Georgia.

           a)      If so, do judges regularly release accused on bail or personal recognizance pending a trial? 
           Please see the statistics below. 
           b)      How does an accused person obtain bail?
           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. 
        3. How many accused persons were granted bail in the last year?
     Statistical data on applied pretrial preventive measures in 2009
                                  Source: The Supreme Court of Georgia

Year

2009 Preventive Measures

Total

16 043 Forms of pretrial preventive measures Pretrial detention - arrest Non-custodial measures Bail Total

8 199 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


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.

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.[24]

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.[25]


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.[26]


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

The national laws are in conformity with the international standards. However, the arbitrary arrest still occurs regularly in Indonesia. In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.[27]


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.[28]

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.[29]

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.[30]


Philippines

Philippine law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention. When the prosecutor finds probable cause to file the Indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest.[31]

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

There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, or two full decades after the Philippines signed the Convention Against Torture.[32]


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.[33]


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

In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them. They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of goons, police and military elements.[34]


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.[35]

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.[36] 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).[37]


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. 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.
  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. Footnote 44.
  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. Centre for Human Rights, Geneva: Crime Prevention and Criminal Justice Branch, Vienna. Professional Training Series No. 3: Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention. United Nations, New York and Geneva, 1994.
  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.
  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. US State Department: Country Reports. Rwanda, 21 June 2010.
  21. US State Department: Country Reports. Rwanda, 21 June 2010.
  22. US State Department: Country Reports. Rwanda, 21 June 2010.
  23. US State Department: Country Reports. Rwanda, 21 June 2010.
  24. International Bridges to Justice: Indonesian Justice Maker, July 2010
  25. International Bridges to Justice: Indonesian Justice Maker, July 2010
  26. International Bridges to Justice: Indonesian Justice Maker, July 2010
  27. International Bridges to Justice: Indonesian Justice Maker, July 2010
  28. International Bridges to Justice: Indonesian Justice Maker, July 2010
  29. International Bridges to Justice: Indonesian Justice Maker, July 2010
  30. International Bridges to Justice: Indonesian Justice Maker, July 2010
  31. International Bridges to Justice: Philippine Justice Maker, July 2010
  32. International Bridges to Justice: Philippine Justice Maker, July 2010
  33. International Bridges to Justice: Philippine Justice Maker, July 2010
  34. International Bridges to Justice: Philippine Justice Maker, July 2010
  35. International Bridges to Justice: Philippine Justice Maker, July 2010
  36. International Bridges to Justice: Philippine Justice Maker, July 2010
  37. International Bridges to Justice: Philippine Justice Maker, July 2010