General Pretrial on the Legality of a Detention

44

CHAPTER V Pretrial on the Legality of a Detention

A. General

A person who is deprived from the civil liberty, is entitled to examine the legality of their detention before the case went to the court. There must be a procedure to periodically examine the detention. This is different compared to the right for prompt trial, because this right is initiated by the detainee, not by the institution that detain the person. It also covers the protection for the right to freedom and gives protection against arbitray detention and other human rights violations. 379 In the countries where the government may detain a person in an unofficial detention facility, such right is the mechanism to determine the existence and physical condition of the detainee, and the party that is responsible for their detention. 380 If the detention is started, the authorized official must detain the detainee without any postponement. The court will then examine the legality of the detention must decide it promptly. The court also must order the release of the detainee if the detention is not legal. The decision for this examination must be implemented promptly, including the initial decision on whether the detention is legal and on the appeal process against the decision provided by the national law. 381 ICCPR states that Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 382 Meanwhile, under the Body Principles for the Protection of All Persons under Any Form of Detention or Imprisonment: i A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful; 383 ii The proceedings referred above shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority. 384 In many legal system, the right to challenge the legality of a detention and the right to remedy, is called as amparo or by filing a written request on habeas corpus. The United Nations Human Rights Committee and the Sub-Committee on Prevention of Discrimination and Protection of Minorities ask all countries: 385 379 Article 9 4 ICCPR, Principle 32 the Body Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Article XXV American Declaration, Artice 7 6 of American Convention, Article 5 4 of European Convention; and Article 7 1 a of African Charter. 380 Article 9 1 of Declaration on the Protection of All Persons from Enforced Disappearance. 381 Navarra v. Perancis, 381992383461, 23 November 1993. 382 Article 9 4 ICCPR. 383 Principle 32 1 , Body Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. 384 Principles 32 and 39, Body Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Principle 32 applies to persons deprived from their liberty; Principle 39 applies to persons detained due to crime. 385 Commission Resolution 199235 and Sub-Commission Resolution Komisi 199115. 45 calls upon on all States that have not yet done so to establish a procedure such as habeas corpus by which anyone who is deprived of his or her liberty by arrest or detention shall be entitled to institute proceedings before a court, in order that that court may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is found to be unlawful. ICCPR further states that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 386 This formula is also asserted under the Body Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, which states that Damage incurred because of acts or omissions by a public official contrary to the rights contained in these principles shall be compensated according to the applicable rules on liability provided by domestic law. 387 The right to reparation applies to persons that undergo arrest or detention that violate the domestic law or international standard and procedures, or both. The procedures for the implementation of this right is not set. It commonly conducted by individuals by filing lawsuit against an institution, state, or the person that is responsible for the wrong detention. 388 Meanwhile, the European Human Rights Court in its decision stating that the examination against the legality of a detention must assure that the detention complies with the procedures under the domestic law, and the argument for the detention is correct under the domestic law. Detention must substantially and procedurally fulfill the national laws and regulations. Meanwhile, the court must assure that the detention is not arbitrary and in accordance with the international law standards. 389 American Convention also gives similar explanation that the right to examine the legality of a detention is crucial for the protection of other rights. This Convention does not allow the suspension to execute such right, even though under emergency situation. 390 This is similar to the statement of the United Nations Human Rights Committee and the Sub- Commission on the Prevention of Discrimination and Protection of Minorities that called all states to to maintain the right to such a procedure at all times and under all circumstances, including during states of emergency. 391 From the abovementioned international instruments, and regional practice, the general standards for the judicial process to examine the pretrial detention may be elaborated as follows: 1. After the preliminary examination hearing that show the indictment, and the law enforcers provide the clear and assuring evidences that show the difficulty in releasing the detainee, the court must order to execute the pretrial detention. 2. In rendering the decision, the court must consider the following factors: 386 Article 9 5, ICCPR. 387 Principle 35 1, Body Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. 388 The form of reparation incuding but not limited to: restitution, compensation, rehabilitation. Basic Principles and Guideline on the Right to Reparation for the Victims of the Violation of Human Rights and International Humanitarian Law. PBB doc: ECN.41997104, by the United Nations Human Rights Commission, also adopted by the United Nations General Assembly, based on the study made by Theo Van Boven, former Special Rapporteur of the Sub-Commission on on the Prevention of Discrimination and Protection of Minorities PBB doc: ECN.4Sub.219938. See also Inter-American Court, Vasquez Rodriguez, 28 Juli 1988, alinea 166-174. 389 Navarra v. Perancis, 381992383461, 23 November 1993. 390 See: Habeas Corpus During Emergency Situation, Advisory Opinion OC-887, 30 Januari 1987, Annual Report Inter- American Court, 1987, OASSer.LVIII.17 doc.13, 1987; and Judicial Guarante in Emergency States, Advisory Opinion OC- 987 6 October 1987, Annual Report of the Inter-American Court, OASSer.LVIII.19 doc.13, 1988. 391 Commission Resolution 199235 and Sub-Commission Resolution Komisi 199115. 46 a. The crime and the punishment b. The risk that threats the public if the defendant is not detained; c. The quality of the evidence; d. The character of the defendant, physical and mental condition, family relationship, occupation, financial condition, the duration of domicile, including the possibility that the defendant will leave the jurisdiction, the relationship with society, track record on drug and alcohol abuse, criminal record, and attendance record during trial; e. Whether the defendant is on probation, parole, waiting for trial, punishment, appeal, or finishing a sentence, when he was committing a crime; f. The presence of third parties that agree to help the defendant in attending the trial and other relevant information regarding the oversight; g. Every facts that justify the concern that the defendant will cause serous risk, and dangerous for public or personal threat; 3. For financial crimes or crimes subject to life sentence without parole, there must be an assumption that the defendant is detained because there is no possible situation to assure the pu li o de o to assu e the defe da t s atte dance during trial. If the defendant provide information to deny such accusation, the reason for detention must be accompanied by clear and assuring evidences. If the detention is an exception to a policy that support a release, there must be a rule on the criterias and procedures in executing pretrial detention. Based on this rule, the court may decide that the defendant will case great risk or threat against public order, the victims or witnesses, or the integrity of the judicial process. The detention status of defendant must be supervised and the feasibility for release must be examined during adjudication process. A defendant that is detained must be prioritized to be tried before the court. The court must also consider the impact of detention. The court must be very careful to decide the necessity in detaining the defendant, considering the possible impacts. During this process, the judicial independency is being tested. The decision to approce a detention or to release a detainee may not be influenced by any parties, including public opinion. B. Pretrial against detention KUHAP stipulates that a pretrial against detention may be conducted after the detention by the investigator or prosecutor post factum, because in executing detention, investigator and prosecutor is given the authority without any court approval in the first place. The rule on pretrial is stipulated under Article 82 of KUHAP. Unfortunately, the said article is quite short, hence does not give any clarity on the procedural law that may be used, particularly on burden of proof. In practice, the procedura law that is being used during pretrial hearing is procedural law for private cases. Because pretrial uses the procedural law for private cases, party that files pretrial acts as an a ppli a t, hile the offi ial is alled as espo de t. The te espo de t is o a k o ledged under KUHAP, because Article 82 1 b states that the official gives a statement to the judge. Examination during pretrial against detention covers all elements that are required in executing detention. The details are as follows: 47 No. Detention Requirements Indicators 1. Legal element Crime subject to five years imprisonment or more 2. Condition 1 Suspect or defendant will escape: a. “uspe t s ha a te including physical and mental condition b. “uspe t s o al o ditio , c. Current occupation, d. Properties owned, e. Stable family, f. Duration of living in his neighborhood g. The bond with the neighborhood, h. Past history, including the absence of criminal record, or i. Criminal record, or j. “us pe t s t a k e o d i atte di g t ials k. The lack of permanent domicile may not be used as the reason for pretrial detention l. The condition that the suspect may committ suicide may not be used as an argument that the suspect will escape m. The lack of individuals that will guarantee the suspect to attend trials and relevant informations on the failure of supervision against the suspect in the public 2 Damaging or making evidences disappear: a. Disappearing actual evidences or potential evidences b. There is a risk that cuse witnesses will not give honest statement during preliminary examination 3 The suspect will repeat the crime: a. This reason must be elaborated and must be understood by considering the relevant factors b. Considering the case and suspe t s t a k e o d a d personality c. “uspe t s t a k e o d a d ha a te d. I ludi g the la k of i i al e o d o suspe t s history in fulfilling the mandatory requirements in the previous judicial process e. The crime is committed when the suspect is during probation, parole, detention postponement or change of detention type, appeal, or cassation. 4 Threats or special risk: a. Threat or risk if the supect will hamper the judicial process must be elaborated clearly with relevant factors. b. Such threat must be supported with real evidences. c. Hampering the judicial process d. Threatening the witnesses, e. Threatening the judges. 48 5 Threat against public order: a. The level of crime b. Pu li s ea tio agai st the suspe t a e used as the argument to execute pretrial detention c. Showing the evidences that indicate if the suspect is released from pretrial detention, it will endanger the safety of the suspect d. Suspect on narcotics abuse case as a user may not be used as condition that it will threat the public order. e. Condition in which the suspect is accused of committing sexual crime or child molestation 3. Elements on detention procedures 1 Detention warrant a. “uspe tdefe da t s ide tit , a e, age, o upatio , sex, and domicile b. Reason for detention, such as for the purpose of investigation or court examination c. Necessity and real condition d. Without detention, the investigation will be hampered e. Quick elaboration on the crime that is charged f. Stating the detention place 2 Copy of detention warrant must be sent to the s uspe t s family or lawyer 3 Comply with the Detention Procedures with Special Treatment. 4. Detention period 1 Must not exceed 20 days limitation and 40 days of extension during investigation 2 Must not exceed 20 days limitation and 40 days of extension during prosecution 3 Must not exceed 7 days limitation and 8 days of extension for minors. 4 Must not exceed 90 days limitation for cases in human rights court 5 Must not exceed six months limitation for terrorism cases

C. Procedures in applying for pretrial against detention