Remand (detention)

Czech Police station in Teplice

Under Article 8 of the Charter of Fundamental Rights and Basic Freedoms of the Czech Republic, which has the same legal standing as the Czech Constitution, a suspect must be immediately familiarised with the grounds of detention, must be interviewed and within 48 hours either released or charged and handed over to a court. The court then has a further 24 hours either to order a custody, or to release the person detained.[5]

Detailed rules of detention are included in the Criminal Procedural Code. The police may arrest and detain a suspect after obtaining prosecutor's consent. In an urgent case the police may detain a suspect without the consent. In both cases, however, the police detention may take place only when grounds for pre-trial detention exist (see below).[6] The statutory limits of 48 + 24 hours must be complied with and reaching the time limit should aways trigger immediate release, unless a court has ordered pre-trial custody.[7]

Anybody may detain a person, who was caught while perpetrating a crime (not a misdemeanor) or immediately after it, when capturing of the perpetrator is necessary to either ascertain the perpetrator's identity or to prevent the perpetrator from escaping or to secure evidence. The perpetrator must immediately be handed over to the police, or when that is not possible, detention of the perpetrator must be immediately reported to the police.[8]

In the United States, a person is protected by the federal Constitution from being held in prison unlawfully. The right to have one's detention reviewed by a judge is called habeas corpus. The U.S. Constitution states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it". A declaration of a state of emergency can suspend the right to habeas corpus.

The Sixth Amendment requires criminal defendants to be "informed of the nature and cause of the accusation". The U.S. Bill of Rights thus grants some protection against being held without criminal charge, subject to the courts' interpretation of what due process means. Federal authorities have also exercised the power to arrest people on the basis of being a material witness. Involuntary commitment of the mentally ill is another category of detention without criminal prosecution, but the right of habeas corpus still applies. The scope of such detentions is also limited by the Bill of Rights.

The executive's military powers have been used to justify holding enemy combatants as prisoners of war, unlawful combatants, and civilian internees; the latter two practices have been controversial, especially with regard to the indefinite detention implied by uncertainty as to when the "War on Terror" might be declared to have ended. Administrative detention, a term applied to many of these categories, is also used to imprison illegal immigrants.

In Swedish law, Häktning is a pre-trial supervision measure, where a suspect can be jailed for crimes that have a prison term of at least one year. There are two degrees of suspicion: reasonable suspicion is the lower level, and probable cause is the higher level.[9]

Remanding occurs if the committed crime has a statutory minimum penalty of at least one year, and includes:

1. a risk of recidivism,
2. a risk that the suspect will destroy evidence or otherwise affect the investigation of the crime, or
3. a risk that the suspect will flee prosecution or punishment.

Alternatively, remanding occurs for probable cause suspicion (and lesser crimes) when:

1. the suspect does not have permanent residence in Sweden, and can be assumed to want to leave Sweden.[10]
2. the identity of the suspect is not established, if the suspect refuses to provide it or has given a false identity.

A person may be held in custody normally for no more than 14 days (or seven days if the degree of suspicion is reasonable suspicion). Afterwards, a new remand hearing is normally held. For suspects under age 18, "serious reasons" for detention decisions are needed and should be notified to court.

When a person is facing less serious crimes, they are given a summary penalty order by prosecutors.[11]

A person who was remanded but was not sentenced or freed after trial is entitled to financial compensation, which is determined by the Chancellor of Justice. The compensation can vary, but it is usually 30,000 SEK for the first month; 20,000 SEK for every subsequent month, up to and including the sixth month; and 15,000 SEK for every month after that.[12] Any loss of income is also compensated. In 2007, 1200 people were compensated.[13]

If a prisoner is sentenced, the remand time counts as part of the prison time, such that less time remains after the trial.

The Committee for the Prevention of Torture of the Council of Europe has repeatedly criticised pre-trial detention in Sweden for the high percentage of cases where restrictions on communication are applied.[14] In Sweden, communication restrictions include no visits, no telephone calls, no newspapers, and no TV.

Seal of the Czech prison service

Olomouc remand prison

Buses of the Czech prison service are characterised by its white-violet color scheme and absence of windows in the prison section

Under Article 8 (5) of the Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Constitution, nobody shall be taken into custody except on the basis of a court decision, and for reasons and a detention period stipulated by the law.[5]

Detailed rules of remand custody are contained in the Criminal Procedural Code. A person may be remanded in custody by the decision of a court only when a number of preconditions is met cumulatively:

• he or she has been charged with committing a crime which is punishable by [15]
  • more than two years of imprisonment in case of intentionally committed crime, or
  • more than three years of imprisonment in case of negligently committed crime,

(the 2/3 years rule is subject to certain defined statutory exceptions, e.g. where a suspect has already been evading the proceedings) and

• there are reasonable grounds indicating that the alleged act was committed and it has all features of the given crime, and
• there are apparent reasons for suspicion, that the act was committed by the charged person, and
• because of the personality of the charged person, the nature of the crime and its gravity, the objective of the custody may not be reached by a different measure.[16]

At the same time, there must be reasonable concern, that the charged person may either

• (a) escape or evade the criminal proceedings, or
• (b) influence witnesses or otherwise similarly frustrate the proceedings, or
• (c) continue criminal activity with which he or she was charged, or finish a criminal act he or she had attempted, or commit a criminal act he or she was preparing or threatening to commit.[17]

The charged person may be remanded in custody subject to maximum terms as follows:[18]

• one year in cases of crimes which are dealt with by a single judge,
• two years in cases of crimes which are dealt with by a panel of three judges,
• three years in cases of felony crimes (i.e. intentional crimes punishable by a sentence with an upper jail term of at least 10 years[19])
• four years in cases punishable by an exceptional penalty (i.e. 20 – 30 years or life imprisonment[20])

one third of the maximum detention periods time may be exhausted in pre-trial proceedings and two thirds may be exhausted during the trial.[21] Reaching the maximum time is always reason for immediate release.

An exception to the time limits above arises in cases of remand due to concern of (b) interfering with witnesses or similar frustration of proceedings, in which case the maximum pre-trial detention period may be only three months, except where the charged person has already been influencing witnesses or otherwise frustrating the proceedings.[22]

The court must review the reasons for the pre-trial custody every three months and decide either to continue it, or to release the charged person.[23] Both the prosecutor and the person in custody may file a complaint against any decision on custody, which leads to review by an appellate court.[24]

Special rules of remand pertain to persons who are processed for extradition, e.g. illegal foreigners, those detained due to international (foreign) warrant or the European Arrest Warrant.

In the Czech Republic, remand takes place in remand prisons or in separated sections of standard prisons. Remand prisons are often in city centres and appertain to court houses. Most remand prisons are over 80 years old, with some, like Pankrác Prison, being more than 125 years old. Men, women and juveniles are held separately. Also persons charged with committing different types of crimes (e.g. unintentional, intentional, violent, etc.) are held separately.[25]

Cells have capacity varying between 1—8 beds, with most having between 2—4 beds. Some remand prisons have rooms intended for watching TV, gyms or chapels, but these are exceptional mainly due to overcrowding and lack of space. All have special areas for interviews between the inmates and their attorneys, visiting rooms and courtyards for out-walks.[25]

Each cell has a WC divided from the rest of the cell-space and running cold water. Each cell-mate has own bed, storage locker and chair.[25]

Inmates which are held due to concern of influencing witnesses are held in isolation with very limited possibility of contact with other inmates as well as the outer world (apart from interviews with own attorneys).[25]

At any given time in 2011, there were around 2.500 inmates in the Czech remand prisons (including ~170 women and ~45 juveniles), compared to some 20.500 convicted inmates (for 10,6 million population).[26] The average length of remand custody is around 100 days, with few inmates spending in remand more than 2 years.[25]

More than half of foreign inmates of the Czech remand prisons are from Slovakia, Ukraine and Vietnam. Other numerous foreigners are from Bulgaria, Moldova, North Macedonia, Poland, Romania, Russia and Serbia. When it comes to non-European states, there are numerous detainees from Nigeria, Algeria, Morocco, Uzbekistan, Kazakhstan and Mongolia. There are mostly only few individuals of other nationalities.[25]

In England and Wales, a suspect may be remanded after charge if:[27]

• The suspect has been charged with a serious crime
• The suspect has been convicted of a serious crime in the past
• The suspect has breached bail conditions or failed to surrender either now or in the past
• The police believe the suspect may not appear in court
• The police believe the suspect may commit another crime if released on bail

Remanding a suspect following arrest and until their first hearing at a magistrates' court is a decision made by the police using the criteria set above. Any such person ‘remanded in police custody’ will be transported from the police cells to the next available sitting magistrate's court. This may be the same day, or may require the remanded individual to stay in police custody overnight or over the weekend. At the first hearing, the court will decide whether it necessary to remand the suspect until the end of the trial. If the suspect is not remanded the court may issue bail conditions for suspect to abide to until the trial. Adults will be held on court remand at a regular prison, while those below the age of 18 will be held at a secure centre for young people.[27] If a remanded suspect is convicted and given a prison sentence, the time they spent on remand is deducted from the length of the sentence. In some cases, a convicted suspect has been released immediately after being sentenced, if the time they spent on remand was longer than or equal to the sentence they received.[28]

The Eighth Amendment to the United States Constitution prohibits excessive bail. Under the US Code, pretrial detention of federal suspects is allowed only under certain circumstances, such as when the defendant is a danger to witnesses or jurors.[29]