what is detention?
Pre-trial detention is a type of detention ordered by the court following a request from the prosecutor. You can be remanded in custody if you are suspected on probable grounds of a crime punishable by at least one year in prison.
detention becomes relevant in three different situations
- If there is a risk that the suspect at large would complicate the criminal investigation by suppressing evidence or otherwise impeding the investigation. This is called collusion risk.
- If there is a risk that the suspect will try to escape justice or punishment, for example by leaving the country. This is called flight risk.
- If the suspect goes free and there is a risk of re-offending. This is called recidivism risk.
What crimes trigger mandatory detention?
If a person is suspected of an offense that prescribes at least two years of imprisonment, detention is mandatory, unless it is obvious that there are no grounds for detention. This means that there is no risk of re-offending, no risk of flight and no risk of collusion. This leads to a clear presumption in favor of detention. Examples of crimes that require mandatory detention are rape, serious drug offenses and serious weapons offenses. When in custody, a person always has the right to a defense lawyer.
Who decides on detention and how is it done?
In all cases of pre-trial detention, an assessment must be made based on the principle of proportionality. This means that pre-trial detention may only be used if the reasons for it are strong enough in relation to the intrusion it entails for the suspect, the harm it causes and if there are other interests that indicate that the suspect should not be detained, for example if the suspect has minor children who need a guardian. A balance of proportionality is therefore required.
If the court suspects that the crime committed will only lead to a fine, detention may not take place, there is a kind of ban on detention.
The court must hold a remand hearing without delay, no later than four days after the prosecutor’s request for remand, to decide whether the suspect should be remanded in custody. The remand hearing consists of a meeting between the prosecutor, the suspect and his/her lawyer in court. There, the prosecutor presents his or her reasons for detention and the public defender opposes or agrees.
how long can you be detained?
Once the court has decided to remand a suspect in custody, he or she may be held for 14 days before the prosecutor has to bring charges. If there are grounds to do so, the period of detention can be extended, but there is a maximum period of detention. If the time for prosecution is about to expire, a re-detention hearing is held to re-examine whether the suspect should be remanded in custody; rules on this are set out in the Code of Criminal Procedure, see for example Chapter 24. . Re-trial hearings shall take place at intervals of no more than two weeks until an indictment is brought.
As a general rule, a suspect may be detained for a maximum of nine months before the prosecutor brings charges. A minor who is requested to be remanded in custody may be detained for a maximum of three months. However, these time limits should not be seen as absolute. If the court decides otherwise, it takes precedence over the general rule of nine or three months.
It is also up to the court to decide whether the suspect should remain in custody until trial and sentencing.
restrictions on the detainee
The prosecutor can obtain permission from the court to impose restrictions on the detainee, i.e. to reduce the suspect’s contact with society while in custody.
Reasons why restrictions may be relevant are if the prosecutor suspects that the criminal investigation will be hindered if the client has contact with the outside world or that there is a risk of evidence being destroyed.
Examples of restrictions are:
- Visits must be approved by the prosecutor
- Letters from and to the detainee are reviewed by the prosecutor
- Calls over the phone must get the prosecutor’s consent
- The detainee is not allowed to watch TV, listen to the radio or read newspapers. They are also not allowed to socialize with other detainees.
The institution responsible for the detainee is the Prison and Probation Service and as a detainee you are in a so-called remand prison. If the detainee has restrictions, he or she may still send letters to his or her public defender, without review by the prosecutor. He or she also has the right to meet the remand priest.
