What is pre-trial detention?
Pre-trial detention is a measure that aims to incarcerate, in a prison, an individual suspected of having committed a crime or an offence and this, before the pronouncement of a judgment.
Difference between pre-trial detention and police custody
Pre-trial detention should not be confused with police . Custody is a relatively brief measure, during which investigative measures are carried out and during which the person in custody is permanently at the disposal of the investigators. It is carried out within a police or gendarmerie department.
Pre-trial detention is longer and is ordered by a judicial authority. Chronologically, in practice, pre-trial detention most often takes place after police custody.
Who is competent to order pre-trial detention?
In the context of the investigation, the liberty and custody judge, seized by the investigating judge, is competent to place an individual in pretrial detention.
It should be noted that the investigating judge does not have the power to order or extend pre-trial detention, and must always refer the matter to the liberty and custody judge. (The only exception is when the investigating judge issues an order for referral to the criminal court, he may at the same time order that the person be kept in pre-trial detention until he or she appears before the trial court).
In the context of an immediate appearance, the Correctional Court may order pre-trial detention when the defendant requests a delay in the trial, but also if it orders a transfer for another reason..
The conditions of pre-trial detention
The principle laid down by the law – unfortunately not always respected in practice – is that freedom is the rule, and that detention should only be an exception.
According to article 144 of the Code of Criminal Procedure, pre-trial detention may be ordered when it is the only way to achieve one of the following objectives:
– To preserve evidence or material clues that are necessary for the determination of the truth ;
– To prevent pressure on witnesses or victims and their families;
– To prevent a fraudulent agreement between the accused and his co-conspirators or accomplices ;
– Protect the accused ;
– To guarantee that the person under investigation remains at the disposal of justice ;
– Put an end to the offence or prevent its recurrence ;
– Finally, in criminal matters only, to put an end to the disturbance of public order caused by the offense.
The maximum duration of pre-trial detention
In misdemeanor cases
In criminal cases, article 145-1 of the Code of Criminal Procedure provides for a period of 4 months of pre-trial detention that can be renewed twice.
More precisely, the duration of pre-trial detention can be renewed according to the legal provisions without exceeding one year.
This maximum period is extended to two years for offenses committed in an organized gang or outside the national territory, or for drug trafficking, criminal conspiracy, pimping, extortion, and may be extended by an additional four months if there is a particularly serious risk to the safety of persons and property.
However, if there has been no previous conviction for a prison sentence and if the sentence is less than or equal to five years – these conditions are cumulative – the duration of pre-trial detention may not exceed four months.
In major crime cases
In criminal cases, article 145-2 of the Code of Criminal Procedure provides for an initial period of one year of pre-trial detention, which may be extended by an additional six months without exceeding a total period of two years for offenses with sentences of less than 20 years imprisonment.
This period is extended to three years “in other cases” and between 3 and 4 years for “crimes mentioned in books II and IV of the penal code, or for drug trafficking, terrorism, pimping, extortion or for a crime committed in an organized gang”.
Finally, these periods may be extended by 4 months by the Investigating Chamber for the needs of the investigation or in the presence of a particularly serious risk to the safety of persons and property.
Naturally, and regardless of the length of the detention order, the detainee may be released, either automatically or – more often in practice – in response to a request for release filed either by the detainee or in a document argued and prepared by the lawyer
The role of the lawyer in relation to pre-trial detention: assistance before the liberty and custody judge, requests for release…
The assistance of a criminal lawyer is essential before the Judge of Freedom and Detention.
The debate before the liberty judge is quick and not very formal, but it is decisive for the rest of the procedure.
During this debate, the Council will emphasize the guarantees of representation and discuss the applicability of the criteria of article 144 of the Code of Criminal Procedure. If there is any doubt about the guilt of his client, he will also point out the risk of improper detention.
Subsequently, the lawyer ensures that the time limits for extending the pre-trial detention are respected. Above all, he formulates and argues requests for release based in particular on the evolution of the case, and if necessary brings his client’s arguments before the Investigating Chamber.
Defending the freedom of the accused is at the heart of the lawyer’s missions.