Pre-trial detention: what it is, what it requires and how long it can last
Few situations in criminal proceedings have an impact as immediate and devastating as pre-trial detention. Within hours, someone who was living in freedom can find themselves behind bars, separated from their family and not knowing how long the situation will last. All of this before having been tried and while the presumption of innocence still protects them.
Pre-trial detention is a precautionary measure of a personal nature by which the judge deprives a suspect or defendant of liberty during the proceedings, before a judgment is handed down. It is not a penalty: its sole purpose is to ensure the proper conduct of the proceedings, not to punish. This distinction is legally essential, although the person who suffers it experiences it indistinguishably from a conviction. Precisely because it affects the liberty of someone not convicted, it is subject to a principle of exceptionality: it must be the last resort, when no less restrictive measure is sufficient, and the judge must always justify it.
The Criminal Procedure Act requires that several requirements be met simultaneously, and the order must give reasons for each. The first is that there be rational evidence of criminal conduct: not certainty, but something more than suspicion, with objective elements that allow participation to be reasonably attributed. The second is that the offence be punishable by a prison sentence exceeding two years, except in cases involving a criminal record. The third is that one of the substantive grounds be present: the risk of flight, the risk of concealing or destroying evidence, which only justifies detention during the investigation phase, the risk of reoffending, or the risk that the suspect acts against the victim, especially in gender-based violence. The fourth is proportionality: the measure must be proportionate to the seriousness of the offence and the circumstances.
Pre-trial detention cannot be prolonged indefinitely. As a general rule it lasts a maximum of one year when the anticipated sentence does not exceed three years, extendable for up to two further years; when the sentence exceeds three years, it can last up to two years, extendable for another two in cases of particular complexity. It can never exceed the anticipated sentence, and time spent in pre-trial detention is deducted from the sentence imposed. Once the time limits are exhausted, the suspect must be released immediately.
The principle of proportionality requires considering less restrictive alternatives: provisional release on bail, the obligation to appear periodically, the surrender of the passport and the prohibition on leaving the country, the prohibition on approaching the victim, or electronic monitoring. The defence should always propose them.
When the suspect is brought before the court, the pre-trial detention hearing is held, one of the most critical moments of the proceedings. The lawyer must argue that the requirements are not met or that the alternatives are sufficient. If the judge orders detention, an appeal lies to the Provincial Court, which must be resolved urgently.
Pre-trial detention is the situation of greatest urgency for a criminal defence lawyer: there is no room for delay. That is why having the contact details of a trusted criminal lawyer and notifying them immediately after arrest is one of the most important steps anyone can take.