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Published: Fri, 02 Feb 2018
Pre-trial Detention: International Standards and Alternative Measure.
People arrested and detained in a pre-trial detention facility under suspicion that they have committed a criminal offence are often held for weeks, months or even years before a court passes judgment on their case. These persons find themselves under enormous psychological pressure and might loose their job and be severed from family and community ties. This study explicates the current international legal bases in the area of pre-trial detention and alternative measures to such detention. Minimum standards pertaining to pre-trial detention on international and European level are examined and analyzed. Selected case law of the European Courts of Human Rights serves the purpose of interpreting the wording of the European Convention on Human Rights and Fundamental Freedoms and a number of recommendations of the Council of Europe are also scrutinized.
Pre-trial detention, liberty and security of a person, presumption of innocence, alternative measures to pre-trial detention.
In every country of the world, people are arrested and detained on suspicion that they have committed a criminal offence. Often, these people are held for weeks, months, or even years before a court passes judgment on their case. The conditions in which these people are held are of the worst in the national prison system. Their legal status is undetermined – they are suspected, but have not yet been found guilty – and they are also under enormous personal pressures such as economic loss and separation from family and community ties.
Provisions on the treatment of persons detained before trial are present in many international instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Standard Minimum Rules for the Treatment of Prisoners, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. In 1990, the Eight United Nations Congress on the Prevention of Crime and the Treatment of Offenders called upon United Nations bodies to assist countries in improving conditions of pre-trial detention and in developing effective non-custodial measures as alternatives to the use of pre-trial detention, and requested the Secretary-General to assist in that task 
II. APPLICABLE RULES AND STANDARDS ON PRE-TRIAL DECISIONS
There are several aspects of pre-trial detention which are covered by the international standards:
the decision to deprive someone of their liberty (for questioning/investigation) and grounds on which it is justifiable-i.e. a reasoned decision;
alternative measures to pre-trial detention;
continuation of detention by a judge;
length of pre-trial detention;
access to legal advice; and
conditions in pre-trial detention.
This study will focus on the first mentioned aspect. The second part of research will present alternative measures to pre-trial detention.
The power of the law enforcement and judicial authorities to apply pre-trial detention is restricted by the rights to presumption of innocence and to liberty and security of the person. The right to presumption of innocence at the international level was first proclaimed in Article 3 of the Universal Declaration of Human Rights  (1948). It has been elaborated in several international documents including the International Covenant on Civil and Political Rights  from 1966 (ICCPR) and the European Convention on Human Rights and Fundamental Freedoms  from 1950 (ECHR).
1. International Standards
The relevant provisions of the ICCPR relating to pre-trial detention are as follows:
Article 9 ICCPR:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
Article 9 of the ICCPR does not shed much light on the exact scope and content of the right to liberty and security of the person. However, it does provide that pre-trial detention shall not be arbitrary, shall be prescribed by law and shall be used as an exception not the rule in criminal justice. This tells us that the circumstances in which it can be used must be limited and set out in legislation. In its General Comment No. 8  the Human Rights Committee (HRC)  confirms that pre-trial detention “should be an exception and as short as possible”. The HRC furthermore defines promptly as not exceeding few days and reasonable time as custody that does not last longer than 48 hours  .
1.2. European Standards and Case Law
Article 5 of ECHR embodies a key element in protection of an individual’s personal liberty and security, which are the essential conditions for everyone to enjoy. Article 5 states that:
Everyone has the right to liberty and security of person.  No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
The motto of this article can be concluded on following: ‘’Judges should constantly keep in mind that in order for the guarantee of liberty to be meaningful, any deprivation of it should always be exceptional, objectively justified and of no longer duration than absolutely necessary.” 
1.2.1. Article 5(1)(c): Pre-trial detention by the police/law enforcement authorities
The ECHR and case-law from the European Court of Human Rights (ECtHR) also discuss the deprivation of a suspects liberty. At Article 5(1) the specific, limited and prescribed circumstances under which the state can lawfully interfere with a person’s right to liberty and security are exhaustively listed. These particular circumstances are contained in subparagraphs (a)-(f) of Article 5(1). From the use of the language in Article 5(1) which states that no-one shall be deprived of their liberty “save in the following cases and” in accordance with law it is clear that the situations listed in Article 5(1)(a)-(f) are the only permissible circumstances foreseen in the ECHR under which the state may interfere with a person’s right to liberty and security. This has been confirmed in the case law of the European Court  as has the fact that only a narrow interpretation of these exceptions will be consistent with the aims of Article 5.  Thus, a “deprivation of liberty legally justified at national level by grounds other than those exhaustively listed in Article 5(1) will certainly be found “unlawful” as being contrary to Article 5(1).” 
Deprivation of liberty (initially apprehension of a suspect by law enforcement authorities) under this article may occur either prior to or following a criminal offence, stipulated in the national law of the country. It can be used as a way to initiate criminal proceedings, a way to prevent an offence being committed and to prevent a suspect fleeing after the commission of a crime. There are three main legal requirements under this article which must be satisfied:
An individual can only be detained for the suspected commission of an act or omission which is actually a criminal offence under national law. Otherwise, deprivation of liberty will have arbitrary character. 
To protect against arbitrary abuse of the right to detain a suspect, the suspicion about the commission of the crime must be “reasonable”. Reasonable suspicion  means that the suspicion must be based on facts, or information which objectively link the person suspected to the crime. There has to be evidence of actions or documentary or forensic evidence, which would demonstrate the causal link of the suspect with the committed crime. The object of the questioning permitted under Article 5(1)(c) is to conduct the investigation, i.e. to confirm or dispel the suspicions; and
The purpose of the apprehension should be to bring the suspect before the competent authority. However, in case through the initial actions such as questioning it was clarified that the suspicion against the person was a result of misunderstanding or there are no evidence supporting the charges, the criminal proceedings can be stopped and the suspect released. 
1.2.2. Article 5(3): Pre-trial detention granted by competent judicial authority
The first task of the judge is to assess whether the initial deprivation of liberty was lawful, i.e. was it based on a “reasonable suspicion”. This is an important judicial safeguard designed to prevent abuse of the police powers.
For pre-trial detention to continue past the questioning phase (i.e. during the investigative stage) the suspect must be brought before a judge “promptly”. The purpose of this provision is:
to reduce the amount of time a person’s liberty is interfered with;
to avoid abuse of the right of law enforcement authorities to detain suspects,
to allow judicial supervision over the lawfulness of the original arrest;
to allow for a reasoned, judicial decision to be made on whether the suspect will be released pending trial, whether pre-trial detention will be granted by the court or whether alternative measures to pre-trial detention shall be ordered.
For a judicial decision granting pre-trial detention to be lawful, in addition to the requirement that there be reasonable suspicion that a crime was committed there must also be objective evidence that the suspect will:
Flee and thus not be available for trial. Factors to be taken into consideration include, history of flight in other criminal cases, specific evidence of plans to flee, links (family, property) with another country which may make flight easier, absence of links with the country in which the crime was committed, character, morals, status & responsibilities of the person concerned. 
Interfere with the course of justice (i.e. destroy evidence, intimidate witnesses, collude with anyone involved in the case as to how they will respond to the proceedings, etc.) This ground gradually loses its justification as the investigation continues and it will generally not be an acceptable justification for pre-trial detention when the investigation is completed. 
Continue to commit the alleged crime; applicable in cases of serious crime where it is plausible the offence may be committed if the individual is released. Past convictions as well as the history and personality of the person concerned must be taken into account. 
Disturb public order; only applicable in certain cases, i.e. high profile political cases or cases where the public may take the law into its own hands because of the nature of the crime. 
1.2.3. Demand for adequate justification of all instances pre-trial decisions
ECtHR case-law requires that judicial authorities indicate reasons in their pre-trial decisions. A reasoned decision allows public scrutiny of the administration of justice and fulfils the demand of legal certainty. A lack of proper justification of the detention decisions by all instance courts is not in line with European standards and violates articles 5(3) and 6(1) of ECHR.  For example, paraphrasing of the procedural provisions or use standard phrases in pre-trial decisions will not be considered as proper justification.
III. APLICABLE RULES AND STANDARDS ON ALTERNATIVE MEASURES
“Pre-trial detention shall be used as a means of last resort in criminal proceedings and alternative measures to pre-trial detention shall be employed at as early a stage as possible.” 
1. International Standards
Article 9(3) of the ICCPR explicitly provides that “[it] shall not be the general rule that persons awaiting trial shall be detained in custody but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment”.
United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules, 1990)
The Standard Minimum Rules provide a set of basic principles to promote the use of non-custodial measures, as well as minimum safeguards for persons subject to alternatives to imprisonment (Fundamental aim 1.1). The competent authority shall have at its disposal a wide range of post-sentencing alternatives in order to avoid institutionalization and to assist offenders in their early reintegration into society (Post sentencing dispositions 9.1). In the event of a modification or revocation of the non-custodial measure, the competent authority shall attempt to establish a suitable alternative non-custodial measure. A sentence of imprisonment may be imposed only in the absence of other suitable alternatives (Discipline and breach of conditions 14.4).
2. European Standards and Case-law
2.1. ECHR Article 5(3): alternatives measures to pre-trial detention
Article 5(3) of the ECHR prescribes that release pending trial may be conditioned by guarantees to appear for trial.
Read together with Article 5(3), regarding all four instances where pre-trial detention is permissible detailed above, alternatives measures to pre-trial detention must be considered  and a thorough reasoned decision made as to why they are not suitable in the given case. i.e. reporting to a police station, house arrest, financial guarantees, surrendering passport/travel documents to authorities as part of the decision making process and it must be made clear in the determination, if pre-trial detention is granted, why alternative measures were not suitable in that particular case.
One of the most frequent alternative measures to pre-trial detention in Europe and the USA is bail. Use of such alternative measure (with or without additional alternative measures such as surrender of the defendant’s passport) mostly is sufficient to ensure attendance of accused persons at court. Basically, bail should be set according to the person’s financial situation.  The guarantee asked for release must not impose on the accused a burden heavier than required for a reasonable degree of security. 
2.2. European soft-law standards on alternatives measures to pre-trial detention
Recommendation No. R (80) 11 of the Committee of Ministers of the Council of Europe concerning Custody Pending Trial  states that it is desirable for humanitarian and social reasons to reduce the application of custody pending trial to the minimum compatible with the interests of justice and that certain standards should be established, at European level, to be applied to persons awaiting trial. With the view to implement those aims, the Committee of Ministers has adopted a number of principles.
Recommendation No. R (99) 22 of the Committee of Ministers of the Council of Europe on Prison Overcrowding and Prison Inflation 
This Recommendation states that prison overcrowding and prison population growth represent a major challenge to prison administrations and the criminal justice system as a whole, both in terms of human rights and of the efficient management of penal institutions. As regards measures relating to the pre-trial stage, the following recommendations should be noted:
The application of pre-trial detention and its length should be reduced to the minimum compatible with the interests of justice. To this effect, member states should ensure that their law and practice are in conformity with the relevant provisions of the European Convention on Human Rights and the case-law of its control organs (measure 11).
The widest possible use should be made of alternatives to pre-trial detention, such as the requirement of the suspected offender to reside at a specified address, a restriction on leaving or entering a specified place without authorization, the provision of bail or supervision and assistance by an agency specified by the judicial authority. In this regard, the Council of Europe recommends that courts keep in mind the possibility of supervising a requirement to remain in a specified place through electronic surveillance devices (measure 12).
Recommendation No. R (2006) 13 of the Committee of Ministers of the Council of Europe on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse  in its Preamble states that:
“The present rules are intended to:
set strict limits on the use of remand in custody;
encourage the use of alternative measures wherever possible;”
It also provides a definition of alternative measures, requires that less restrictive measures be made available, states the conditions under which a person can be detained and prescribes that objective criteria be applied by the judicial authorities responsible for determining whether suspected offenders shall be remanded in custody or whether remand in custody shall be continued etc.
pre-trial detention is a legitimate tool of the criminal justice system;
its use must be prescribed by law and as an exception not a rule.
the use of pre-trial detention is only lawful if the following are met-
there is reasonable suspicion that the individual in question has/is going to commit a crime which is an offence under the national law AND that there is evidence that one or more of the following would occur:
the individual would abscond and therefore not be available for trial;
interfere with the course of justice, i.e. intimidate witnesses, destroy evidence;
continue to commit the alleged crime;
disturb public order.
alternative measures to pre-trial detention must be considered in judicial decisions concerning pre-trial detention
decisions to detain must give detailed reasons and explain why pre-detention is necessary and why alternative measures are not appropriate in the specific case
1. Human Rights Handbook, No 5, Council of Europe, The right to liberty and security of the person; A guide to the implementation of Article 5 of the European Convention in Human Rights, 2002.
2. Henry J. Steiner, Philip Alston, Ryan Goodman, International human rights in context : law, politics, morals : text and materials, 2007.
3. Marie-Bénédicte Dembour, Who believes in human rights? : Reflections on the European convention, 2006.
4. Steven Greer, The European Convention on Human Rights : achievements, problems and prospects, 2006.
5. Matthias Koenig, Menschenrechte, 2005.
6. Margarete Grandner, Wolfgang Schmale, Michael Weinzierl (Hg.), Grund- und Menschenrechte : historische Perspektiven, aktuelle Problematiken, 2002.
7. Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention, United Nations, New York and Geneva., 1994.
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