General Non-Custodial Alternative Measure

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CHAPTER IV Non-Custodial Alternative Measure

A. General

Article 9 of ICCPR states that it is not a common practice that a person waiting for trial must be detained, however a release may be given if there is a guarantee to attend the trial at every phase, if it is said so. Consequently, the said provision is implemented by the United Nations Standard Minimum Rules for Non-Custodial Measures known as the Tokyo Rules, which aims to improve the condition of all pretrial detainees by recommending that the detention is only executed when non-custodial measures such as bail cannot be conducted. It is a general knowledge that the overcapacity in detention facilities is due to the high number of pretrial detention that are excessive, as a result of the inefficiency of the ongoing investigation. Therefore it is highly recommended that most of the detainees must be released. Tokyo Rules stipulated the foundation on the policy to use non-custodial measures as an alternative to detention, so countries are encouraged to develop non-custodialmeasures in their legal system to give many options in order to reduce the imprisonment mechanism Tokyo Rules also asserted the importance to avoid pretrial detention, because it is a last resort in the criminal justice system. Non-custodial alternative measures must be considered during the early phase of a criminal proceeding. B. The necessity to release detainees In particular, the objective of the release of pretrial detainees is to provide procedures for them that are accused of committing a crime, to keep the integrity of judicial process, to protect the victims, witnesses, and the public from the threat, risk, or disturbance. Judges and officia court will decide to release the defendant from the detention, based on personal statement without any bail, or release the defendant based on bail, or to continue the detention according to the procedures. The release of detainees may be based on several considerations such as costs, the realization that p et ial dete tio is a ep essi e a tio that ill ha pe defe da t s li elihood a d ps hologi al o ditio . Fu the , these o ditio s a also affe t defe da t s apa ilit to defe d hi selfhe self. The release of detainees may also be conducted based on several requirements such as diversion and other alternatives. In releasing pretrial detainees, the court must determine the requirements to assure that: i The defendant will attend the trials; and ii Protection for the victims, witnesses, and other parties. These condition may cover the participation during rehabilitation, diversion, or other pre- adjudication alternatives. 36 The Court must have many programs or options to promote the release of pretrial detainees, by considering the abovementioned consideration, and in accordance with the risk and special need from the defendant. If there is no guarantee, the defendant may be still detained after several procedures. For petty crimes that do not need detention, the defendant will attend the trial by using a summon from the court official mandatory reporting as a replacement to the arrest warrant during pretrial. In determining that a criminal act as a petty crime or not, many factors must be considered such as the presence of violent threat, guns, or violation against court order. In detail, the requirements to release detainee are as follows: 1. Every jurisdiction must adopt the procedure that is designed to promote the release of a detainee based on their own confession or if necessary with bail. Additional requirements ust e used to elease a detai ee if this is e essa to ake the detai ee s p ese e during trials; to protect the public, victims, witnesses, or other people; and to maintain the integrity of judicial process 2. When the release on l ased o the defe da t s o fessio is ot sufi ie t to assu e hishe presence during trials, bail by using money may be imposed. 3. ‘elease ased o ail a o l e used to gua a tee defe da t s ate da e du i g t ials. Befre using bail, the the court must consider the relase without bail. if the bail is not enough fo a elease, the ail ust e set a lo e le el to assu e defe da t s atte da e a d to help the defe da t s fi a ial o ditio . 4. Bail using money should not be used to consider the crimes that relate to public safety. 5. The court may net the bail using money as the main requirements for release 6. It is prohibited towards compensation on bail, the defendant must be released when bail is set, and the court may not take 10 of the bail The policy that support the release of detainee and the selective use of pretrial detention will bring a big impact on the necessity to see the significant number of defendant that being postponed from the adjudication process. Therefore, to be more effective, this policy needs proper information and oversight.

C. Non-custodial measures