Once the case goes to trial, an individual may be detained for five months. Therefore, at a maximum, an individual may be detained during both pre-trial and trial detention for a total of nine months. If the individual is found not guilty, the individual may request compensation for detention. Both bail and personal recognizance are protections provided for in the Georgian Code of Criminal Procedure.
However, there are issues with the granting of bail. Many accused cannot afford to pay bail and remain in custody. Therefore, even though bail is frequently granted, in practice bail is an ineffective means of reducing pre-trial detention. Plea Bargaining is also employed to reduce pre-trial detention. Often, accused who are granted bail but unable to pay are willing to make a plea in order to avoid longer detention. According to Articles of the Indonesia Criminal Procedure Law, pretrial detention is only justified in the following cases:.
Detention should be carried out if there is initial evidence. The "lawful, reasonable, and necessary" term is a standard clause in the detention warrant. However, the standard has never been clarified. Additionally, it is rarely contested as to whether a detainee fulfills the clauses. Therefore, for everyone arrested, the clauses must appear on the warrant but there is no requirement of proof. The national laws are in conformity with the international standards. However, arbitrary arrest still occurs regularly in Indonesia.
In some cases, incommunicado detention occurs, which does not reflect international standards or domestic codes.
During a police investigation, a suspect can be detained for up to 20 days. This period can be extended with permission from a prosecutor for an additional 40 days. During prosecution, a suspect can be detained up to 20 days, extending the previous detention period. This period can also be extended with permission from the Chief of District Court for an additional 30 days.
Therefore, the total average period of pretrial detention is days. However, according to the Indonesia Criminal Procedure Law, during both police investigation and prosecution, an individual can be detained for 30 days and additional time as needed if the accused is mentally or physically ill, or has been charged with a crime subject to 9 or more years in prison.
Detainees may be released on bail or personal recognizance by the law; however, in practice, judges rarely release the accused prior to trial. The accused has the right to submit a bail appeal to the relevant legal authorities but bail is rarely granted and there are no other procedures available to challenge pre-trial detention. Filipino law, in large part, complies with the threshold requirements of the United Nations with respect to pretrial detention.
When the prosecutor finds probable cause to file the indictment against the accused before the appropriate trial court judge, the judge is required to look at the documents and interview witnesses before issuing a warrant of arrest. Hence, detention is lawful if it stems from a lawful order from a court with jurisdiction over the case, and is reasonable upon a finding of probable cause. Probable cause can be deduced when a crime is committed and the accused probably committed it.
As to the 'necessary' element, detention is often the general rule when an indictment is filed. Authorities no longer determine whether or not detention is actually necessary. There are also laws that prohibit torture and incommunicado detention -- in particular the Anti Torture Law, which was passed just last year, two full decades after the Philippines signed the Convention Against Torture.
Generally interpreted to mean that detention is only done in accordance with the lawful orders of the judge; that the accused is apprised of his or her Miranda rights; that he is given the right to Counsel; that he has the right against self-incrimination, etc.
In the towns of Bondoc Peninsula and Iloilo, the first official court document farmers receive are warrants of arrest. Hence, they are not properly apprised of the charges against them.
They are not given a copy of the affidavits and are unable to file counter-affidavits. Many of them are arrested in the dead of the night, by a group composed of police and military elements. Average detainment is approximately one month until an arraignment. Generally prisoners are able to be released on bail or personal recognizance.
In cases not punishable by life imprisonment, bail is a fundamental right. For life imprisonment cases, including rape, robbery or murder, a bail hearing is required and a judge determines whether bail should be granted. Personal recognizance is available, but is not often granted.
There are several ways to challenge prolonged client detention. Habeas Corpus is available to challenge illegal detainment. Both the accused and his or her representative or family member is able to file a writ of habeas corpus. Finally, the defense can file a Motion to Dismiss for failure to undergo "barangay conciliation" mechanisms. Barangay conciliation is village conciliation which is required to small crimes committed in a barangay village.
Organic Genocide Law: contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20, confessions have taken place since , but only a small number have been processed due to the disconnect between the law and officials implementing the law.
Gisovu Project: the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints.
This is an effort to determine whether continued detention is needed. Gacaca Courts: grassroots justice. Considering the severe and often irreversible negative effects, international law states that pre-trial detention should be the exception, not the rule. If there is a risk, for example, of a person absconding, then the least intrusive measures possible should be applied. A range of non-custodial measures are available, including bail, confiscation of travel documents, reporting to police or other authorities and submitting to electronic monitoring or curfews.
Alternatives are less expensive, and savings made could be better invested in creating a just and effective criminal justice system, with more thorough investigations, more judges, quicker procedures and improved prison conditions.
However, in many countries pre-trial detention continues to be imposed systematically on those suspected of a criminal offence without considering whether it is necessary or proportionate, or if less intrusive measures could be applied. We advocate for pre-trial detention to be used only in exceptional circumstances, in line with international human rights standards.
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