Pre-trial detention. What is pre-trial detention and when does it apply?

Pre-trial detention and pre-trial detention are precautionary measures which, as their names suggest, deprive the accused or person under investigation of their liberty in criminal proceedings in order to prevent them from committing further offences until a definitive sentence has been passed.

Obviously, these measures are exceptional in nature, as they involve depriving a person of his or her liberty before it has been proven by a court ruling that he or she has committed the offence of which he or she is accused. For this reason, it is advisable to deal with it in depth.

Difference between pre-trial detention and remand in custody

The two concepts are often used as synonyms. Although it is true that they are quite similar, they are not the same. They are defined in articles 502 and 519 of the Criminal Procedure Act.

Firstly, pre-trial detention is a precautionary measure that is imposed during the criminal proceedings and once the person under investigation has been charged. In other words, it must already be at the trial stage. It is applied when there is sufficient evidence of guilt and there is a risk of absconding, repetition or obstruction of justice. Its purpose is to ensure that the sentence is served if guilt is finally proven.

So what is pre-trial detention? The difference is that this deprivation of liberty order is given when the subject is being investigated for the commission of a serious crime, but the trial has not yet begun.

Requirements for pre-trial detention

These are set out in article 503 of the Criminal Procedure Act. Let us take a look at them:

• The offence for which the subject is accused must carry a maximum penalty equal to or greater than two years' imprisonment, with the exception of having a criminal record derived from the commission of an intentional offence.
• There must be sufficient grounds to believe that the accused is guilty of the offence.
• The purpose of pre-trial or provisional detention must be to prevent reprisals against the victim's legal interests, the destruction or manipulation of evidence, flight or repetition of the offence.

Procedure

The remand in custody or provisional detention must be agreed in court between the Public Prosecutor's Office and the private prosecution. It is compulsory for the defence lawyer to attend the hearing and it must be held within 72 hours of the accused being brought before the court.

The decree of provisional or pre-trial detention must be carried out by means of a reasoned detention order in which the objectives of this measure are explained in detail. Bail may or may not be set, and those harmed by the offence must be kept permanently informed of the decision. However, the decision can be appealed, according to article 766 of the Criminal Procedure Act.

What is the maximum length of pre-trial or remand detention?

In all cases, judicial authorities have to try to ensure that both types of imprisonment are of the minimum duration necessary to achieve their objectives, although it is true that, with certain exceptions, there is no maximum term.

These exceptions refer to cases where they are ordered for the purpose of avoiding repetition or reprisals on legal assets. If this is the case, it may not be exceeded:

• Two years if the offence carries a sentence of more than three years. An extension of up to two more years is possible.
• 12 months if the offence carries a sentence of less than three years. An extension of up to six months is possible.

These extensions must be approved only once. The fundamental requirement is that there are circumstances that make it foreseeable that the offence cannot be tried within the time limits previously set.

For his part, it is possible that the accused is finally convicted and then appeals against the sentence. In this case, the duration of pre-trial detention may not be extended beyond 50% of the duration of the sentence imposed.

Special types of pre-trial detention

Now that we have dealt with the maximum term of pre-trial and remand detention, it is time to talk about the ways in which it can be served. It is true that, in most cases, the person under investigation or accused is generally placed in a penitentiary module, but this does not always have to be the case.

In this sense, there are exceptions that may lead the judge to request that the investigated or accused person spends this time deprived of liberty at home. This is what is popularly known as "house arrest" and is only determined when imprisonment is inadvisable for health reasons.

In such cases, the judge will determine the appropriate supervision measures to guarantee the deprivation of liberty. You will only be allowed to leave your home to continue treatment for your illness.

On the other hand, this type of imprisonment may also be incommunicado. For this, it must be demonstrated that the life, physical integrity or liberty of another person would otherwise be endangered. In no case can it be extended for more than 10 days (5 days initially and 5 more if an extension is requested).

At this point, we believe that it is sufficiently clear what pre-trial detention is, what requirements must be met in order to impose it and what the existing types are. If you still have any questions, please do not hesitate to contact one of our criminal lawyers.