Let’s understand the question of what is meant by detention in custody, how this procedure takes place and how best to prepare for it. Below we will talk about taking a person into custody at the pre-trial stage.
A criminal case is opened, the suspect is detained for 48 hours and at a certain point the necessary evidence is collected.
The prosecutor concludes that the person should be taken into custody. What is the next step?
What is remand in custody?
Detention is a preventive measure against a suspect, accused or convicted person, which consists of depriving the person of liberty with the permission of the court.
Since it concerns the restriction of a person’s right to freedom, this type of preventive measure will be the most intensive with respect to the civil rights and freedoms of a person.
Which court decides on remand in custody?
The detention of a suspect at the request of the prosecutor’s office is taken by the judge of the preliminary investigation of the county court alone.
What are the grounds for choosing a preventive measure in the form of remand in custody?
Two important conditions for the court to grant the prosecutor’s office’s request to remand a person in custody:
– the existence of reasonable suspicion
– remand in custody is an urgent necessity.
In detail, this means that the investigating authority and the prosecutor’s office must have a sufficient evidence base for the court to be satisfied that there is a suspicion against the person. The materials collected in the case are submitted to the court for review and the court can assess whether there is a potential offence in the case or whether the person is not involved in the commission of an offence at all.
The urgent need is that the person may be evading criminal proceedings or committing new offences.
Important! In this case, the defendant will often question whether he or she has been proven guilty. At this stage of the proceedings and when a person is remanded in custody, the court does not make findings as to the guilt of the person. It is wrong to assume that the suspect has already been convicted at the stage of remand in custody.
For how long is the detention of a suspect authorised?
At the pre-trial stage
The court authorises the detention of a person for up to two months. The period of detention for first degree offences is a maximum of 6 months, for second degree offences up to 4 months, and for juveniles up to 2 months.
If the extension of the preventive measure is necessary, the prosecutor’s office submits a request for its extension to the court. The court verifies the validity of the extension of the preventive measure.
In court proceedings
If the criminal case has reached the court and the court finds it necessary to keep the defendant’s detention in custody, the court must check the validity of the preventive measure every 6 months. Given that a criminal case may be pending in all courts for several years, the defendant may remain in custody for all that time.
Is it worth appealing against a ruling to remand a suspect in custody?
It directly depends on the will of the client and the situation. A positive result occurs in relatively rare cases. In such a case, the defence counsel will advise whether it is worthwhile to appeal against the court order or whether it is better to concentrate on other aspects of the defence.
How is it possible to replace detention in custody with a more lenient preventive measure?
The court at the request of the suspect may replace detention with the obligation to submit to electronic surveillance. Electronic surveillance would be a more lenient preventive measure in this case, but whether the court will agree to this.
In order to do so, the criminal supervision should find out whether it is possible to install the necessary equipment for electronic surveillance at the suspect’s place of residence.
According to current practice, the court may make such a substitution if the risks of criminal proceedings are minimal. For example, in the case of smuggling, there is a risk that the person will re-offend even if he or she is under electronic surveillance, as he or she may continue to supervise illegal shipments.
What is the difference between arrest and detention?
Sometimes the word ‘arrest’ is used by the average person in the context of custody, which is inherently wrong. An arrest is a punishment in a misdemeanour case.
Appeal Procedure
An appeal can be filed against a court order of detention within 10 days. The appeal is filed through the county court, but the circuit court will hear the appeal. You may appeal a county court order to the State Court with the assistance of an attorney.
The law does not allow you to file an appeal for a remand order.
Where will the suspect be held if the court chooses remand in custody?
Normally, the suspect will be sent first to a detention centre, but later in custody he or she will be held directly in the prison building.
What are additional restrictions?
For a suspect in custody, the prosecutor’s office may apply additional restrictions in the form of prohibitions for the suspect to communicate with all persons except the defence counsel.
All correspondence, phone calls, and visits may be prohibited. In essence, information can only be communicated through the defence counsel.
Specifics and difficulties for the defence counsel and the suspect
When a suspect is taken into custody, building a defence becomes more challenging. There are a number of rationales for this:
– Evidence collection. The suspect can only collect evidence with the assistance of defence counsel.
– Additional restrictions. Additional restrictions may apply, which certainly has an emotional impact on the person, as they cannot communicate with their loved ones.
– The need to change defence tactics. The main value is human freedom and in order to obtain it the suspect in many cases is forced to give evidence to the investigating authority, to agree with the prosecutor’s office on punishment on unfavourable conditions.
At the same time being at liberty, the defender always has more opportunity to manoeuvre, and also does not have to hurry.
Attorney
Sworn attorney Ilya Zuev. Contact us.
Advantages:
Specialisation of conducting criminal cases.
Analysis and decision-making on the choice of the line of defence.
Experience as a lawyer since 2011.
