Pretrial detention is a phenomenon that is increasingly discussed in the context of current events affecting society as a whole. In the eyes of the general public, the institution of pretrial detention is often misinterpreted, as a person taken into custody is generally perceived as guilty. In the following article, we have therefore decided to examine aspects of the strictest form of pretrial detention in the Slovak context, as well as potential changes to its legal framework.
In criminal proceedings, law enforcement authorities are authorized to use various coercive measures governed by Act No. 301/2005 Coll., the Criminal Procedure Code (hereinafter the “Criminal Procedure Code”), such as summons, bringing before the court, detention, arrest, or pretrial detention. Pretrial detention represents the most intrusive coercive measure, which substantially interferes with fundamental human rights and freedoms, primarily due to the temporary deprivation of personal liberty of the person taken into custody.
Given the consequences it entails, and with an emphasis on adhering to the principles of proportionality and restraint in the conduct of criminal proceedings, as well as the principle of ultima ratio, the institution of detention implies that detention should constitute the last resort for securing an accused person for the purposes of criminal proceedings and should be used only in the most unavoidable cases when, in layman’s terms, there is no other option. In this context, the Constitutional Court of the Slovak Republic also ruled in its decision I. ÚS 47/2013, in which it states, quote: “Detention, as an exceptional means of securing the accused for the purposes of criminal proceedings, may be imposed on him only if facts established by law are found that justify the necessity of its use in the interest of the timely and proper investigation of criminal offenses and the just punishment of their perpetrators. “Since this constitutes a temporary restriction of personal liberty, there must be a necessity for imposing detention and holding the accused in it only for a specific legitimate purpose, and only for a specific period of time.” The essence of collusio detention, whose name is derived from the Latin word collusio, which translates to “to obscure” or “to conceal,” is only applicable if there are reasonable grounds to suspect that the accused will influence witnesses or otherwise obstruct the clarification of facts relevant to criminal prosecution, whereby such conduct may include, for example, the forgery of documentary evidence, its alteration, threats of violence, and the like.
In recent weeks, the term “pre-trial detention” has been increasingly discussed in society, and particularly among legal professionals, especially given its relatively frequent imposition in high-profile cases.
In connection with the imposition of pretrial detention, legal experts emphasize that detention constitutes the most serious infringement of the right to personal liberty, which should last only as long as necessary and must be duly justified. First and foremost, it is necessary to recognize that detention is not a punishment; furthermore, in accordance with the principle of the presumption of innocence, a person taken into custody must always and under all circumstances be regarded as innocent throughout the entire duration of detention. Pre-trial detention precedes the actual issuance of a court decision, or may last until such a decision is issued; therefore, the principles of proportionality and restraint applicable throughout the entire criminal proceedings must be taken into account. The mere fact of pretrial detention cannot be considered proof of the accused’s guilt; moreover, in the final stage of criminal proceedings, in which the court will decide on the accused’s guilt or innocence, the court may ultimately issue an acquittal. For these reasons, it is essential to always thoroughly assess whether the conditions necessary for a person to be held in pretrial detention are actually met, and whether pretrial detention is truly used as a last resort, while simultaneously maintaining and adhering to all conditions set forth in the Criminal Procedure Code.
In practice, therefore, experts are increasingly asking whether the current conditions for pretrial detention are sufficiently appropriate and correct, and whether it would be advisable to amend the legal framework to set stricter and more rigorous conditions for the use of pretrial detention, so as to prevent its abuse and imposition in cases where there are reasonable doubts as to whether the conditions for the detention of the accused are actually met.
The current legislation sets the basic period of detention at 7 months, with the maximum period of detention subsequently varying depending on whether the offense is a misdemeanor, a felony, or a particularly serious felony. At the same time, the Criminal Procedure Code does not distinguish the length of detention based on whether it is pre-trial, remand, or preventive detention, which may be problematic given that detention is supposed to last only for the necessary (reasonable) time. In Slovakia, it is not uncommon for pre-trial detention to last as long as 12 months, even though all persons against whom the accused’s alleged misconduct was directed have already been heard during the preliminary proceedings. Courts generally deny defendants’ requests for release from detention on the grounds that these witnesses will continue to testify at the main trial, and thus the risk of their being influenced persists. Such a practice, however, implies so-called mandatory detention, which is an undesirable phenomenon.
In connection with the call for stricter conditions for the use of pretrial detention, one may also mention the ruling of the Constitutional Court of the Czech Republic, Case No. III. ÚS 240/1997, noting that the Czech legal framework regarding pretrial detention regulates the conditions for its use much more strictly than is the case under the Slovak legal system. In the ruling in question, the Constitutional Court of the Czech Republic stated, quote: “the wording of Section 71(1)(b) of the Criminal Procedure Code leads some criminal justice authorities (but also the courts) to interpret that if the accused is in pretrial detention and there is a concern that he or she will influence witnesses or co-defendants, it is not possible (in such a situation) to release the accused from detention before the case is heard in court, and thus not earlier, for example, during the preliminary proceedings. However, in the opinion of the Constitutional Court, such an approach is incorrect. Detention is, in fact, an exceptional measure in any criminal proceeding, and only when the same purpose cannot be achieved by other means. The provision of Section 71(1)(b) of the Criminal Procedure Code cannot be understood as a mechanical instruction for the mandatory duration of pretrial detention into which the accused was taken during the preliminary proceedings, specifically until all witnesses or co-defendants have been heard by the court. Pre-trial detention may thus last only for the necessary period even during the preliminary proceedings. Therefore, the grounds for detention in relation to the testimony of witnesses or co-defendants may cease to exist as early as during the preliminary proceedings.”
With regard to the use of pretrial detention in criminal proceedings, it is important to recognize that pretrial detention not only infringes upon the accused’s right to personal liberty but also fundamentally restricts the ability to conduct a proper defense. Defending a client held in pretrial detention is exceptionally challenging, as the attorney must constantly assess whether the conditions for pretrial detention are actually met, or whether the grounds for pretrial detention have ceased to exist, in order to ensure that the client’s rights are properly and thoroughly protected. At the same time, communication between the accused and the attorney is significantly impeded, as it takes place only under certain strictly defined conditions. Of course, this situation does not contribute to the proper and thorough preparation of the defense by the attorney, which may ultimately negatively impact the proper conduct of the defense and, at the same time, may create undue pressure on the person in pretrial detention.
In this context, the Slovak Bar Association (SAK) recently issued its own statement, sending a letter directly to Slovak Minister of Justice Mária Kolíková, in which it highlighted several shortcomings in the use of pretrial detention in the Slovak Republic due to inadequate legal regulation. In its letter, the SAK appealed, among other things, for pretrial detention not to be overused, proposing to clarify the grounds for pretrial detention for this purpose. Currently, pretrial detention is considered when there is reasonable doubt that the accused will influence witnesses, expert witnesses, or other involved parties; however, this legal provision does not in any way take into account, for example, whether a witness against whom the accused’s collusive behavior is directed has already testified, or whether an expert witness has already submitted their expert opinion. The proposal submitted by the SAK contains proposed amendments to the Criminal Procedure Code to the effect that pretrial detention would be considered only in the event of a reasonable threat that the accused might influence witnesses, experts, and the like who have not yet been heard. If the person against whom there is a risk of collusive behavior has already been heard, the grounds for pretrial detention would cease to exist, and a decision to grant pretrial detention would not be possible. In such a case, the prosecutor would have to specify in their motion to remand the accused in custody the persons against whom the accused’s collusive behavior poses a threat, or state the specific circumstances giving rise to concerns about obstruction of the investigation. If the amendment were to enter into force, the conditions for the grounds for detention would correspond appropriately to Czech legislation, which explicitly cites the fear of influencing “witnesses not yet heard” as the fundamental ground for pre-trial detention.
The proposal submitted by the SAK includes a requirement that the maximum duration of pretrial detention be set at 3 months; according to the SAK’s justification, this period should be sufficiently long to allow for the questioning of all persons against whom the accused’s collusive behavior poses a threat. This change should help expedite the preliminary proceedings and prevent delays in the proceedings or the undue prolongation of pretrial detention. If it were to emerge during the proceedings that the accused influenced witnesses or obstructed the investigation, it would subsequently be possible to decide to keep that person in custody beyond the three-month period while maintaining other statutory time limits. In connection with this issue, one may also mention the ruling of the Constitutional Court of the Czech Republic, Case No. III. ÚS 240/1997, whereby the regulation of the institution of pretrial detention in the Czech Republic is one of the impetuses for changing and tightening the conditions for the use of pretrial detention under our legal framework. In the ruling in question, the Constitutional Court stated, quote: “The wording of Section 71(1)(b) of the Criminal Procedure Code leads some criminal justice authorities (but also the courts) to interpret that if the accused is in pretrial detention and there is a concern that he or she will influence witnesses or co-defendants, it is not possible (in such a situation) to release the accused from detention before the case is heard in court, and thus not earlier, for example, during the preliminary proceedings. However, in the opinion of the Constitutional Court, such an approach is incorrect. Detention is, in fact, an exceptional measure in any criminal proceeding, and only when the same purpose cannot be achieved by other means. The provision of Section 71(1)(b) of the Criminal Procedure Code cannot be understood as a mechanical instruction for the mandatory duration of pretrial detention into which the accused was taken during the preliminary proceedings, specifically until all witnesses or co-defendants have been heard by the court. Pre-trial detention may thus last only for the necessary period even during the preliminary proceedings. Therefore, the grounds for detention in relation to the testimony of witnesses or co-defendants may cease to exist as early as during the preliminary proceedings.”
In recent days, we have witnessed a situation in which the Specialized Criminal Court decided to release a former high-ranking state official from custody on the grounds that all key witnesses in the case had already been heard and therefore there was no basis for pretrial detention. The prosecutor filed an appeal against the Specialized Criminal Court’s decision. The Supreme Court, acting as the appellate body, overturned the Specialized Criminal Court’s decision and ruled on the matter itself, rejecting the defendant’s request for release from custody while simultaneously expanding the grounds for detention. According to the latest information, however, the Supreme Court ruled differently in another proceeding, namely by rejecting the prosecutor’s protest against the Specialized Criminal Court’s decision to release the accused and upholding the Specialized Criminal Court’s decision.
The dissatisfaction of the legal community, as well as the letter sent by the President of the Slovak Bar Association to the Minister of Justice of the Slovak Republic, directly indicate that we can expect a debate to open in the near future, the outcome of which may even result in a change to the current legal framework governing pretrial detention under the Slovak legal system.
