Prolonged Pre-Trial Detention

This section will give you an introduction to the issue of prolonged pre-trial detention, the legal framework and suggest ideas about what you could do if you or someone in your community has been detained for an unduly long time.

This is related to the subject of “bail” because the risk of prolonged pre-trial detention arises when a person has been denied bail or has not been given the possibility to apply for bail. The key point for prolonged pre-trial detention is that, even if someone has been lawfully denied bail, there usually is an upper lawful limit on how long someone can be held in detention before trial. If this limit has been breached, legal action may be possible.


What Is the Legal Framework?

(a) The Right to Liberty and the Concept of “Reasonable Time”

Linked to the right to liberty, there are requirements in international law that any person arrested or detained on a criminal charge:

  • Shall be brought promptly before a judge; and
  • Shall be entitled to trial within a “reasonable time”; or
  • Released without prejudice to the continuation of proceedings (i.e. released on bail).

Example: American Convention on Human Rights, Art 7(5)

Article 7 of the ACHR protects the right to liberty and prohibits arbitrary detention. In relation to detention without trial, it states:

(5) Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

A similar requirement appears in many national constitutions:

Example: Article 19, The Gambian Constitution

(5) If any person arrested or detained is not tried within a reasonable time, then without prejudice to any further proceedings which may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial.

While the obligation to release people from pre-trial detention that have not been tried within a reasonable time exists in many countries, there is no universal rule on what is a “reasonable time”.

Example: Fillastre v Bolivia (UN Human Rights Committee)

In this case, the UNHRC held that “what constitutes ‘reasonable time’ is a matter of assessment for each particular case”.

However, there are a number of key factors that can influence the assessment of reasonable time. These have been neatly outlined by the Gambian Supreme Court.

Example: Clark and Garrison v Attorney-General

The Gambian Supreme Court ruled that to determine what is “reasonable time”, the Court should be guided by the following factors:

  • The length of the delay;
  • The reasons given by the prosecution to justify the delay;
  • The consequences for the delay; and
  • The responsibility of the accused for asserting his or her rights.

Other factors often include the seriousness of the offence and the length of any likely sentence. The cases below demonstrate how these factors have been applied:

Example: Assenov v Bulgaria (European Court of Human Rights)

An individual had been charged with sixteen or more burglaries and was not released on bail because it was feared that he would re-offend if released. He ended up being held in pre-trial detention for 2 years.

The European Court ruled that he had been denied a “trial within a reasonable time” in violation of article 5(3) of the ECHR. Key reasons for the decision were that:

  • During one of the two years, the police and prosecutors took almost no action with the investigation, no new evidence was collected and Mr. Assenov was questioned only once.
  • Mr Assenov was a minor so it was especially important that the authorities displayed special diligence in ensuring that he was brought to trial within a reasonable time.

Example: Gray v DPP (Australia)

A man’s trial was delayed so much that he had already served more time than the maximum sentence related to the alleged crime. The Victorian Supreme Court found imposing such a sentence would breach his right to liberty.

(b) National Law Time Limits on Pre-Trial Detention

In some countries, legislation sets out specific custody time limits that a person can be held in pre-trial detention:

Example: Prosecution of Offences Regulations 1987 (UK)

This law sets the following framework of time limits:

  • 56 days for “summary trials” (these are for less serious offences); and
  • 182 days for “indictable offences” sent to the Crown Court (these are more serious offences).

When the relevant custody time limit expires, the accused must be released on bail.

Other examples of custody time limits include:

  • Bolivia: There is an 18-month maximum limit on pre-trial detention;
  • Guatemala: Pre-trial detention cannot be longer than the maximum sentence for the crime someone is charged or a maximum of 1 year; and
  • Venezuela: Pre-trial detention cannot be longer than the minimum sentence for the crime someone is charged or a maximum of 2 years;

Check if your country has a similar limit.


I've Been in Prolonged Pre-Trial Detention: What Can I Do?

If you or someone in your community is being held in detention for an unduly long time, consider the following steps.

(a) Gather Evidence

In any type of legal case, you need to prove to a court that your “version of events” (i.e. what you are saying happened) actually happened. To prove your case, you will need evidence.

Examples of necessary/useful evidence relating to detention without charge will likely include:

  • Records of your detention: There should be an official record of anyone who is held in a police station or detention facility, the length of time they were held in custody and the reasons for any extensions to their detention. This should be requested from the relevant police station;
  • Records of charge: There should be an official record of your charge and what crime were you charged with. This should be requested from the relevant police station;
  • Witness statements: If you cannot get access to official records of your detention or the records are incorrect, you may need to get statements from witnesses to confirm length of detention and the charge. This could be from a family member or legal representative that knew of the time of your arrest and accompanied you at the time of the charge. For more information on witness statements, see the A4J Witness Statement Guide;
  • Court documents: If the judge gave written reasons for authorising your detention, denying you bail, or extending your detention, it is important you request a copy of these reasons; and
  • Sentencing guidelines: Find the sentencing guidelines relevant to the crime you are charged to find out the maximum and minimum sentences that could be given. These can be compared against the time you have been held in detention.

For more tips on how to gather evidence, please refer to How Can I Prove My Case? on the A4J Going to Court: Q&A.

(b) Raise the Issue During the Criminal Justice Process

If you or the detainee continue to be in detention during the criminal justice process, you could challenge the detention informally. For example:

  • Ask the supervising police officer at your detention facility to tell you the reasons for your continued detention. Inform them of the length you have been in detention and of your right to be released after a reasonable time or the specific custody time limit in your country. However, if you believe there could be a safety risk if you challenge the police in this way, get a representative to do so on your behalf.

Another option is to raise the issue with the judge when you get appear at a pre-trial hearing. Inform the judge of the length of your detention and the relevant time limit. In some systems, there is a process of “automatic review” or “mandatory review” where your detention must be reviewed by a judge when it reaches the custody time limit or periodically every few months.

Example: Article 253, Costa Rica Criminal Code

Under Costa Rica’s Criminal Code, a judge must review bail decisions every 3 months an accused is in custody. Similar rules exist in El Salvador, Paraguay, Venezuela and the Dominican Republic.

(c) Think about Taking Legal Action

If you have been detained before trial for a period of time in breach of national law, there will usually be possibilities for you to take legal action against the police or the State outside of the criminal justice process (i.e. in a separate case from the criminal investigation the police are bringing against you). These options will be outlined in How Can I Take Legal Action?

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