Pre-Trial Detention Orders

Pre-trial detention: conditions, authority and review

Pre-trial detention places a suspect or defendant in prison temporarily during an investigation or trial. It seriously restricts liberty and is therefore subject to strict statutory safeguards.

This temporary measure is available only when the statutory conditions are met.

What is pre-trial detention?

Under Articles 100 and 101 of the Criminal Procedure Code, detention is a procedural measure, not a punishment or finding of guilt. There must be concrete evidence supporting a strong suspicion of an offence and a recognised ground for detention. The measure must be proportionate, and the decision must explain why judicial control would be insufficient.

The assessment considers the following together:

1. Concrete evidence supporting a strong suspicion of an offence.
2. Existence of a Reason for Arrest: At least one of the following conditions specified in the law must exist:
   • Absconding or circumstances supporting a risk of absconding.
   • A risk of concealing, destroying or altering evidence.
   • A risk of pressure being exerted on a witness or victim.

Detention is a last resort. Less restrictive measures, including judicial control, must be considered.

Frequently Asked Questions

1. Can a prosecutor order detention? No. During an investigation, the criminal judge of peace decides on the prosecutor’s request. During trial, the court decides at the prosecutor’s request or on its own initiative. A prosecutor’s request is not itself a detention order.

2. When is detention unavailable? In addition to statutory prohibitions, necessity and proportionality must be assessed. Principal limits include:

• Offences punishable only by a judicial fine.
• Offences carrying a maximum prison sentence of two years or less, except intentional offences against bodily integrity.
• Other statutory prohibitions on detention.
• Under Article 21 of Child Protection Law No. 5395, children under 15 cannot be detained for acts carrying a maximum prison sentence of five years or less. This is not an absolute prohibition covering every offence committed by a child under 15.
• Cases in which detention would be disproportionate or judicial control would be sufficient.

3. How is a detention order challenged? The general time limit under Article 268(1) is two weeks from learning of the decision. Transitional rules must be checked for decisions issued before 1 June 2024. An application for release may also be considered separately, depending on the stage of the case.

The objection should identify specific defects in the decision and include any new evidence relevant to detention.

4. Who reviews the objection? It is lodged with the authority that issued the decision. Detention ordered by a criminal judge of peace is generally reviewed by a criminal court of first instance judge in the same judicial district. Decisions made by trial courts follow the relevant rules in Article 268(3).

The lawyer’s role

A lawyer examines the evidence supporting suspicion, the grounds for detention, proportionality and alternatives under judicial control. This may include:

• Preparing and submitting the objection.
• Examining whether the supporting evidence was obtained lawfully.
• Tracking time limits and ensuring the application follows the required procedure.

An objection and an application for release must be assessed against the reasons for detention and the current stage of the case.