Pre-trial detention: what it is, what requirements it demands and how long it can last
Few situations in criminal proceedings have an impact as immediate and devastating as pre-trial detention. Within a matter of hours, someone who was living in freedom can find themselves behind bars, separated from their family and not knowing how long that situation will last. All of this before being tried and while the presumption of innocence still protects them.
Pre-trial detention is a precautionary measure of a personal nature by which the judge deprives a person under investigation or accused of their liberty during the process, before a judgment is handed down. It is not a penalty: its sole purpose is to guarantee the proper conclusion of the process, not to punish. This distinction is legally essential, even though the person who suffers it experiences it in a way indistinguishable from a conviction. Precisely because it affects the liberty of someone not convicted, it is subject to a principle of exceptionality: it must be the last resort, when no less restrictive measure is sufficient, and the judge must always justify it.
The Criminal Procedure Act requires that several requirements concur simultaneously, and the order must give reasons for each one. The first is that there be rational indications of criminality: not a certainty, but something more than a suspicion, with objective elements that allow participation to be reasonably attributed. The second is that the offence be punishable with a prison sentence of more than two years, except in cases involving a prior record. The third is that one of the substantive grounds be present: the risk of flight, the risk of concealing or destroying evidence, which only justifies detention during the investigation, the risk of reoffending or the risk that the person under investigation acts against the victim, especially in gender-based violence. The fourth is proportionality: the measure must be proportionate to the seriousness of the offence and the circumstances.
Pre-trial detention cannot be prolonged indefinitely. As a general rule it lasts a maximum of one year when the prescribed penalty does not exceed three years, extendable by up to two more years; when the penalty exceeds three years, it can last up to two years, extendable by another two in cases of special complexity. It can never exceed the prescribed penalty, and the time in pre-trial detention is deducted from the penalty imposed. Once the time limits are exhausted, the person under investigation must be released immediately.
The principle of proportionality requires alternatives that are less restrictive to be assessed: provisional release on bail, the obligation to appear periodically, the withdrawal of the passport and the prohibition on leaving the country, the prohibition on approaching the victim or electronic monitoring. The defence must always propose them.
When the person under investigation is brought before the court, the pre-trial detention hearing is held, one of the most critical moments of the process. The lawyer must argue that the requirements are not met or that the alternatives are sufficient. If the judge orders detention, an appeal lies before the Provincial Court, which must be resolved urgently.
Pre-trial detention is the situation of greatest urgency for a criminal lawyer: there is no room for delay. That is why having the contact details of a trusted criminal lawyer and notifying them immediately after the arrest is one of the most important measures anyone can take.
