Information and Toolkits

Toolkit: Applying for release pending trial

Published:

This guide gives general information on pre-trial detention and the rights you have during this process.

The information contained in this document is provided for information purposes only and is not intended as legal advice, nor does it constitute legal advice. You should always seek professional legal advice from a lawyer qualified to practice in the jurisdiction you are in.

N.B.: This guide does not cover situations of pre-trial detention while waiting to be surrendered to another country. This is covered by another advice guide that you can find here.

What is pre-trial detention and how is it decided?

Pre-trial detention, sometimes also called detention on remand, is when you are suspected or accused of having committed a criminal offence and are held either in police custody or in prison while the police is investigating the case.  You can also be held in pre-trial detention during your trial.

The procedure for deciding whether you should be placed in pre-trial detention is not the same in every country. However, it must always be ordered by an independent judicial authority (court or a judge), and you must always be heard in the process. Your local lawyer will be able to explain what steps and time limits there are in pre-trial detention proceedings in the country where you are a suspected of or charged with a crime.

What rights do you have?

When you are held in pre-trial detention, you have certain rights that the authorities (such as police and prosecutors) must respect. First and foremost, you have the right to be informed about these rights. Generally, you have the right to be assisted by a lawyer, to be informed of the reasons for the charges against you in a language that you understand and the right to interpretation and translation if you do not speak and understand the language of the country where you are detained.

In the European Union you should be given a written “Letter of Rights” where the rights you have are explained in a simple and accessible language. If you do not speak the language of the country you are detained in, you have the right to ask for this information (and the Letter of Rights) in a language you speak and understand. If you have not been given this document, you should immediately ask for it.

If you are in pre-trial detention in a country in the European Union, the rights you have – and that should be included in the “Letter of Rights” – include:

  • Right to a lawyer: You have the right to a lawyer from the moment that the authorities inform you that you are a suspect or accused of a crime, or from the moment that you are detained.
  • Right to legal aid: If you cannot afford a lawyer, you have the right to legal aid (so that you do not have to pay for the lawyer) and information on how to access it. Ask the police to help you contact a lawyer.
  • Right to silence: You have the right to stay silent and to not answer any questions that the police or other authorities ask you. Keep in mind that you can say something that could be used against you even if you are not directly asked about your involvement in the offence you are suspected of. You can inform the authorities that you will not say anything until you have a lawyer.
    N.B.: There can be no punishment or negative consequences for you if you stay silent until your lawyer arrives.
  • Right to know reasons for arrest: You have the right to be informed about what crime you are suspected or accused of as soon as possible. Keep in mind that you do not have to respond to these accusations or explain anything until your lawyer arrives.
  • Right to interpretation/translation: If you do not speak the language of the country where you are detained, you have the right to be assisted by an interpreter and receive translations of important documents in a language you understand and speak. This includes the right to interpretation when you are questioned by the police and during conversations with your lawyer. This assistance is free, and you cannot be asked to pay for it.
  • Right to access case file: You and your lawyer have the right to see the evidence that the police (or prosecutor) use to prove the suspicion against you and to prove that you need to be held in detention.
  • Right to challenge detention: You have the right to information about the possibility of challenging your arrest and detention.

N.B.: Ask for the Letter of Rights if you do not receive it and always ask questions if you do not understand what is written in the letter or what is said to you.

Why would the court order pre-trial detention?

If you have been accused of a criminal offence, you should be treated as innocent until a court has decided that you are guilty. This is called the “presumption of innocence”. Pre-trial detention cannot be used as a punishment because you have not yet been found guilty by a judge or a jury. That is why there must always be a good reason for keeping you in pre-trial detention and this reason must be clearly explained and based on evidence in the decision that orders your pre-trial detention.

It is common for courts to order pre-trial detention when they believe that, if you are released, you will:

  • Try to evade the proceedings against you by hiding from the authorities or fleeing the country;
  • Commit another crime; or
  • Interfere with witnesses or tamper with evidence. This means that the court believes you will try to influence witnesses, or change or destroy other evidence.

However, the exact reasons (often called “grounds for detention”) for ordering pre-trial detention will vary from one country to another, so you will need to discuss this with your lawyer. In any case, the prosecutor or police requesting the detention must provide evidence to prove that one or more of these reasons apply to you.

How can you increase your chances of being released until your trial?

Attend a pre-trial court hearing in person

In most countries, it is the prosecutor who makes a request to a court to place or extend pre-trial detention. This request will be heard by a judge, and you should make sure that you attend this hearing. You may be offered to attend the hearing via telephone video link. Speak to your lawyer about this option or insist on attending the hearing in person.

Cooperate with your lawyer

In order to help your lawyer to convince the court that you can be released under the best conditions, it is very important that you cooperate with your lawyer. They may need some of the following information:

  • Where your place of residence is;
  • Information about your family and friends, community or other stable close relationships;
  • Whether you have a job;
  • Whether you have any other stable ties and ongoing activities (including studying, training, volunteering, etc.);
  • In some countries – where in case of release you have to pay a security (monetary bail) – whether you have enough money to pay a security, or you know people who would agree to pay a security for you. N.B.: This possibility might not be available in your country. You should speak to your lawyer about this;
  • Any health conditions for which you need medication or hospital treatment;
  • Anything likely to increase your vulnerability when dealing with authorities (e.g. if you were a victim of a crime).

Give reasons why you can safely be released from detention

There are specific reasons why the court can decide to order pre-trial detention and the prosecutor must prove that these reasons exist in your case. These reasons are listed in the left column in the table below.

Your lawyer should help you to identify the reasons which the police or prosecution may use to seek your detention and the evidence that could be used to convince the judge.  Once you have identified the reasons, you can start thinking of the best way to show that detention is not necessary in your case. Some examples of reasons you can give are listed below.

The perceived risk: You will try to evade justice by hiding or avoid being contacted by the authorities and not attend the court hearings.

You may be able to:

  • Show that you have stable ties to your community, family, friends, work, education; religious community or other ties that you would not want to lose;
  • Show that so far you have not tried to evade justice and have cooperated with the authorities;
  • Show that you have children or other family members that are dependent on you for income or other types of support.

The perceived risk: You will interfere with witnesses or tamper with evidence.

You may be able to:

  • Offer to stay away from designated witnesses or from the alleged victim(s);
  • If you have been in detention for a longer period of time, show that all relevant witness testimonies and evidence should already be gathered by the police making it impossible for you to tamper with them.

The perceived risk: You will reoffend (commit another crime).

The prosecutor must present the court with evidence that shows that there is a risk that you will commit another crime. You and your lawyer should ask to see this evidence.

You may be able to:

  • Prove to the judge that you do not have a criminal record (you have not committed crimes before).
  • If you do have a criminal record, prove to the judge that your situation or behaviour has changed, for example that you got a job, you have stayed away from criminal activity or drugs.

The perceived risk: Your release will cause public disorder

This ground should apply only in exceptional circumstances and the police or prosecutor must be able to prove that your release would actually disturb public order (for example if it will attract a lot of media attention).

You may be able to:

  • Argue that the offence you have been suspected or accused of is not so grave to cause public disorder in case you are released;
  • Show that there are no other reasons to keep you in pre-trial detention, therefore you should be released.

N.B.: If the judge believes that detention is necessary in your case even after you give your reasons for why you believe it is not, you can demand that the judge considers alternative measures instead of pre-trial detention. The alternative measures available varies from one country to another, so you should speak to your lawyer about this. Examples of common alternative measures are electronic monitoring, house arrest, regularly reporting to the local police station, curfew, prohibition to change residence or leave the country.

What will happen if you do not respect the conditions of your release?

You can be released from pre-trial detention, but the judge may choose to apply other restrictive measures. In that case you may be required to observe certain conditions and fulfil certain obligations. If this is the case, and you do not follow these conditions, the court may set stricter conditions or decide that you should be put in pre-trial detention. In some countries violating your conditions can be a new offence. This can lead to a conviction, criminal record and sentence separate from the main offence with which you have been charged.

Please note that the consequences of not following the conditions will vary from one country to another and can be very serious. This is something you should discuss with your lawyer.

If you have been released, it is important that you cooperate with the authorities. Make sure to:

  • Follow any obligations that the court has ordered;
  • Make sure that the authorities have the correct contact information (such as the address where you are staying and/or your phone number) so they can reach you in time and give you the information you need.

Appendix for lawyers (in Europe)

If you are facing charges in a European country, you should show this guide to your lawyer. It will give them an overview of human rights standards on pre-trial detention, particularly case-law from the European Court of Human Rights (‘ECtHR’) and the procedural rights set out under the six EU procedural rights directives [1] (EU law).

The ECtHR cases and EU law can be used in the local courts to strengthen the application for release before trial.

1. Right to liberty

A number of international laws enshrine the right to liberty and the importance of avoiding arbitrary and unnecessary detention. This is echoed in Article 6 of the Charter of Fundamental Rights, while Article 9 of the International Covenant on Civil and Political Rights (ICCPR) states: “It shall not be the general rule that persons awaiting trial shall be detained in custody”. Article 5 of the European Convention on Human Rights (ECHR) states: “Everyone has the right to liberty and security of person” and sets out when detention is acceptable and the safeguards that must accompany it. Right to liberty as a fundamental right also means that any restriction to a person’s liberty can only be applied as a measure of last resort and any restrictions have to be well-reasoned and based on evidence.

2. Necessity and proportionality

Lawful pretrial detention is a restriction of the right to liberty according to Article 5(1)(c) of the ECHR. The persistence of reasonable suspicion is a prerequisite for pre-trial detention to be lawful. Further, according to the ECtHR, lawful grounds for ordering pre-trial detention are generally the risk that the suspect will fail to appear at trial, the suspect will interfere with witnesses or tamper with other evidence, the suspect will commit other offences or that the release will cause public disorder. An individual assessment must be conducted when deciding whether to order pre-trial detention (ECtHR, Aleksanyan v. Russia [2008], paras. 177 -180). The ECtHR has clarified that pre-trial detention must be proportionate in order to achieve the aim (ECtHR, Ladent v. Poland [2008], para. 55).  The burden to prove the necessity of detention is always on the state (ECtHR, Ilijkov v. Bulgaria [2001], para. 85).

3. Alternative measures

An aspect to consider when assessing necessity and proportionality of pre-trial detention is whether less severe alternative measures would be sufficient to achieve the aim. Pre-trial detention is intended as an exceptional measure only justified when other less stringent measures have been considered and found to be insufficient (ECtHR, Ambruszkiewicz v. Poland [2006], para. 31). Such measures could include surrendering passport to the authorities, electronic monitoring, house arrest and regularly reporting to the local police station and other depending on the circumstances.

4. Well-reasoned decisions

The national court is obliged to examine all the facts of the specific case arguing for or against detention and must adequately address them in its decision. Further, the ECtHR has explained that arguments for and against release must not be “general and abstract” but contain references to the specific facts and each person’s personal circumstances justifying their detention (ECtHR, Aleksanyan v. Russia [2008], para. 179).

5. Procedural rights

Detention proceedings must be adversarial and always ensure equality of arms. The detainee must be given an opportunity to effectively challenge the basis of the allegations against them, which may require that they are provided with access to a lawyer, translation and interpretation and access to documents in the case file which form the basis of the detention request. The six EU procedural rights directives can be of help in understanding what procedural rights apply in pre-trial detention proceedings.

Prompt judicial review

6. Article 5(3) of the ECHR sets out that “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 authorised by law to exercise judicial power…”. The right serves as a guarantee against arbitrary or unjustified deprivation of liberty (ECtHR, Aquilina v. Malta [1999], para. 47; Stephens v. Malta (no. 2) [2009], para. 52).

7. The judicial review must be automatic and cannot depend on whether the detained person has applied for it (ECtHR, McKay v. the United Kingdom [2006], para. 34; Varga v. Romania [2008], para. 52; Viorel Burzo v. Romania [2009], para. 107). The ECtHR has explained that “the automatic nature of the review is necessary to fulfil the purpose of the paragraph, as a person subjected to ill-treatment might be incapable of lodging an application asking for a judge to review their detention (…)” (ECtHR, McKay v. the United Kingdom [2006], para. 34). The provision does not provide any exceptions to the requirement, not even on grounds of prior judicial involvement (ECtHR, Bergmann v. Estonia [2008], para. 45). Generally, the review should take place within a couple of days (ECtHR, McKay v. the United Kingdom [2006], para. 47; Oral and Atabay v. Turkey [2009], para. 43; İpek and Others v. Turkey [2009], paras. 36-37; Kandzhov v. Bulgaria [2008], para. 66).

Length of pre-trial detention

8. According to Article 5(3) of the ECHR, a person in pre-trial detention has the right to trial within a reasonable time or to be released pending trial. In determining whether a reasonable time has elapsed, national courts must consider whether the pre-trial period has “imposed a greater sacrifice than could, in the circumstances of the case, reasonably be expected of a person presumed to be innocent” (ECtHR, Wemhoff v Germany [1968], para. 5 of “As regards Article 5(3) of the Convention”).

9. Article 5(3) also “implies that there must be special diligence in the conduct of the prosecution” of pretrial detainees’ cases (ECtHR, Stögmüller v. Austria [1969], para. 5 of “As to the law”). A detained person is entitled to have the case given priority and conducted with particular expedition (ECtHR, Wemhoff v. Germany [1968]).

10. Whether time spent in pre-trial detention is considered excessive is decided on a case-by-case basis. However, the ECtHR has found periods of pre-trial detention lasting between two and a half years (ECtHR, Punzelt v. Czech Republic [2000], paras. 71 – 82) and almost five years (ECtHR, PB v. France [2000]) to be excessive.

Reasoning and review of pre-trial detention

11. Article 5(4) of the ECHR guarantees the detained person the right to actively seek a judicial review of their detention and requires that the lawfulness of detention shall be decided “speedily” and must be subject to review (ECtHR, Rakevich v. Russia [2003], para. 43; Mooren v. Germany [2009], para. 106). Whether this has been complied with is determined on a case-by-case basis. In straightforward cases, the ECtHR has held that a three-week period between initial detention and an application for release pending trial was too long (ECtHR, Rehbock v. Slovenia [2000]). Where the justification for detention could vary over time, Article 5(4) enables the defendant to apply for review of the legality of detention at regular intervals (ECtHR, De Jong, Baljet and van der Brink v Netherlands [1984]).

12. The “court” referenced in Article 5(4) must be a body of “judicial character” offering “fundamental guarantees of procedure applied in matters of deprivation of liberty” (ECtHR, De Wilde, Ooms and Versyp v. Belgium [1971], para. 76). It means that this body must be “independent both of the executive and of the parties to the case” (ECtHR, Neumeister v. Austria [1968], para. 24). Furthermore, it must have the ability to order the defendant’s release if detention is deemed unlawful (ECtHR, Singh v UK [1996]).

13. The defendant must be able to initiate the review (ECtHR, Rakevich v. Russia [2003], para. 43) which should “be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5(1)” (ECtHR, E v. Norway [1990], para. 50). It must be an adversarial oral hearing (ECtHR, Assenov v. Bulgaria [1998]) and “proceedings in which an appeal against a detention order is being examined, equality of arms between the parties, the prosecutor and the detained person must be ensured” (ECtHR, Wloch v. Poland [2000], para. 126). In this context, the opportunity to challenge arguments against release requires that the defence be given access to the case file (ECtHR, Wloch v. Poland [2000], para. 127). This right is guaranteed also by Article 7(1) of Directive 2012/13 on the Right to Information in Criminal Proceedings.

14. The court must give reasons for its decision regarding the detention and must not use identical or “stereotyped” forms of words (ECtHR, Yagci and Sargin v. Turkey 1995, para. 52). When reviewing a pre-trial detention decision, the court must keep in mind that there is a presumption in favour of release (ECtHR, McKay v. UK [2006], para. 41). The authorities have a continuous obligation to consider whether alternative measures could be used instead of detention (ECtHR, Darvas v. Hungary [2011], para. 27).

Continued detention

15. Continued detention “can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention” (ECtHR, McKay v UK [2006], para. 42). According to the ECtHR, stronger reasoning for why the person should remain in pre-trial detention is required in cases of continued detention.

16. While the persistence of reasonable suspicion that the person has committed the offence is a prerequisite for lawful detention, it does not suffice as the sole reason for detention after a certain amount of time has passed, no matter how serious the offence and the strength of the evidence against the defendant (ECtHR, Aleksanyan v. Russia [2008], para. 177; Tomasi v. France [1992]; Caballero v UK [2000]). The Court has “repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand” (ECtHR, Ilijkov v Bulgaria [2001], para. 81).

17. Regarding the risk of re-offending, there must be evidence of a definitive risk of reoffending. A danger of re-offending in no way suffices to make pre-trial detention lawful where “it is a matter solely of a theoretical and general danger and not of a definite risk of a particular offence” (ECtHR, Matznetter v. Austria [1969], concurring opinion of Judge Balladore Pallieri, para. 1). Furthermore, it cannot be concluded from “the lack of a job or a family that a person is inclined to commit new offences” (ECtHR, Sulaoja v Estonia [2005], para. 64).

18. Release pending trial is often refused by national courts on the grounds that there is a risk that the person will abscond prior to trial (Article 5(1)(c) of the ECHR). The risk of absconding also cannot be based on theoretical and abstract assumptions. The ECtHR has found that “the mere absence of a fixed residence does not give rise to a danger of flight” (ECtHR, Sulaoja v. Estonia [2005], para. 64). Although such a danger may exist where the sentence faced is a long term of imprisonment, “the risk of absconding cannot be gauged solely on the basis of the severity of the sentence faced” (ECtHR, Muller v. France [1997], para. 43, see also Barfuss v. Czech Republic [2000]). Further, the risk of flight decreases the longer the time spent in detention and the person must be released pending trial if it is possible to obtain guarantees that ensure the person’s appearance (ECtHR, Neumeister v. Austria [1968], para. 10; Merabishvili v. Georgia [2017], para. 223).

19. The risk of interfering with the investigation also diminishes with time as the inquiries are conducted, statements taken and other investigative activities completed (ECtHR, Clooth v. Belgium [1991], para. 44).

 


[1] Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings; Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty; Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings; Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings; Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings.

Skip to toolbar