You have been detained for a year and you don’t know how much longer they’ll keep you in? All the evidence has been collected, but no trial is set? You have no idea when you’ll be free? Such instances of pre-trial detention are unlawful and can be remedied.
What is pre-trial detention? Why is it a serious form of restraint?
Pre-trial detention is used by the police to stop the defendant from absconding, interfering with the investigation or reoffending. In such cases the police are of the view that leaving the defendant at large would be too risky, for example because of the possibility of committing another offence intentionally. Another reason could be the risk of the accused frustrating or jeopardising the investigation, intimidating witnesses or hiding evidence to obstruct the work of the investigating authority.
Pre-trial detention is a serious restriction of someone’s rights and a coercive measure, therefore it must be ordered by a court. In such a case a person’s liberty is restricted for a considerable length of time before their sentence is delivered.
What are the criteria of pre-trial detention?
One of the key criteria of pre-trial detention is reasonable suspicion or an indictment that has already been laid against the accused.
However, this is not enough.
Another criteria is that the court must be of the view that the coercive measure is proportionate and necessary. This is always subject to the judge’s individual opinion and the circumstances of the particular case. The court must be of the view that there is no other way to ensure the completion of the investigation and to prevent the defendant from absconding. Such reasonable suspicion may be that the defendant has attempted to flee previously.
It is important, however, that the severity of the committed act (severe violation) or the risk of reoffending in itself does not constitute grounds for a pre-trial detention. The court must deliberate and justify its decision based on the actual individual circumstances of the defendant.
What is the maximum term of pre-trial detention?
It depends on the severity of the crime that the defendant is accused of or suspected of having committed.
Pre-trial detention may last maximum 1,2,3 or 4 years, depending on whether the suspected crime is punishable by an imprisonment of maximum 3,5 or 10 years or one that entails an imprisonment of over 10 years.
If the act under investigation is punishable by an actual life sentence, the pre-trial detention may be longer than 4 years. The same applies to detention ordered or extended by a second or a third instance procedure.
Pre-trial detention should be as short as possible, therefore
- the investigating authority and the prosecutor’s office must be as efficient as possible;
- the court must review the personal circumstances of the defendant every 2-3 months (in case there are changes or developments which would render the pre-trial detention unwarranted).
In short, every authority must strive to end the pre-trial detention as soon as possible.
Can I request the review of the pre-trial detention?
The defendant and their lawyer may both motion the pre-trial detention to be terminated. One possible reason for this is when the investigation has stalled or there have been no new developments for a long time. Also, there might be a fact or information which suggests that the coercive measure against the defendant is no longer necessary, due to certain changes in their personal circumstances.
How can I request the termination of pre-trial detention?
The easiest way is to do it through your lawyer. Since everyone has a right to have a lawyer, you probably have one already (criminal defence attorney) If you do not have one because you cannot afford it, you may ask the trial court to appoint a public defender for you.
When is pre-trial detention unlawful?
It is often unlawful, due to several reasons. For example, the Curia pointed out the incorrect practice of the courts when the reasons for extending pre-trial detentions are justified in a mere one-page document. Such justifications are usually exact copies of previously issued court orders and it is not possible to tell from them whether there has been any genuine review of the detention.
The justification of second-degree decisions to order and especially to prolong pre-trial detentions is usually summed up in a few lines. Most often they only state that the first instance decision has been upheld, because the reasons given are valid in every respect.
They already suggest that the decision to extend the detention has been made arbitrarily, without any genuine justification.
Are there any legal remedies available at the European Court of Human Rights?
Unjustifiably long pre-trial detentions may infringe our right to liberty, set forth in Article 5 of the European Convention on Human Rights. This means that defendants can turn to the European Court of Human Rights. We have to be careful, because the time limit within which we can turn to Strasbourg is six months after the end of the pre-trial detention.
Also, we must remember that the Strasbourg practice defines the end of the pre-trial detention in a different way, compared to Hungary.
According to Hungarian law, pre-trial detention may be applied during second and third instance procedures as well. In contrast, Strasbourg only considers such imprisonment as pre-trial detention up until the first instance decision is issued. Which means that the deadline for submitting a case to Strasbourg is counted from the announcement of the first instance decision, even if there is no final and binding judgement in the defendant’s case. This time slot may start even earlier if the trial court ended the defendant’s detention before it adopted its first instance decision.
It must be noted that according to the practice of the courts, we cannot claim that the extension of the detention was against the European Convention until a year has passed since the coercive measure had been ordered.
If a defendant decides to turn to the Court for being held in pre-trial detention for less than a year, our experiences show that according to the Court’s latest practice it would reject the application on account of the fact that none of the human rights in the Convention has been violated.
On the other hand, almost all cases of pre-trial detentions over one year have been successful when taken to Strasbourg.
How much compensation is due after the decision of the European Court of Human Rights?
According to the Court’s practice, the defendant is not entitled to a particular amount of compensation (for more information: Case of Şahin Çağdaş v Turkey). However, the amount of the compensation may not be negligible or disproportionately small compared to the severity of the unlawful circumstances applied against the defendant, that is the unjustified extension of the detention, because this would render the right, guaranteed by Article 5 of the Convention, feigned and weightless.
The Strasbourg court stated that the amount of compensation awarded may not be smaller than the compensations awarded by the Court in similar cases. It is clear that the Court tries to be consistent when it comes to awarding compensation for too long detentions.
Our latest experiences show that in the case of a 33-month detention, for example, the Court suggested EUR 3,000 to be awarded if the Parties agreed to settle the case amicably. In the Hunvald v Hungary case the Court also declared that there had been a violation of Article 5 § 3 of the Convention, because the applicant’s detention was prolonged without any genuine review, therefore it awarded EUR 2,700 compensation and EUR 2,000 for the costs and expenses incurred. There was another case, where the court not only stated that the prolonged detention had been illegal, but also that Articles 3,8 and 13 of the Convention had been violated, awarding EUR 12,500 compensation and EUR 6,000 for the costs. Hagyó v Hungary case).
What can you do?
In short: it is highly likely that the Strasbourg court will state that there has been a violation of the law if the pre-trial detention was longer than one year, its extension was unjustified and arbitrary, and we seek legal remedy in time.
If you feel that you have been a victim of such illegal conduct by the authorities in terms of your pre-trial detention, do not hesitate to contact us.