NCJ Number
68314
Journal
REVIEW - INTERNATIONAL COMMISSION OF JURISTS Volume: 23 Dated: (1979) Pages: 35-61
Date Published
1979
Length
27 pages
Annotation
RULES AND PRACTICES REGARDING PRETRIAL DETENTION OF INDIVIDUALS ACCUSED OF CRIMINAL OFFENSES IN ENGLAND, FRANCE, THE FEDERAL REPUBLIC OF WEST GERMANY, WALES AND BELGUIM ARE DISCUSSED.
Abstract
MOST MEMBER STATES OF THE COUNCIL OF EUROPE HAVE ADOPTED INTO THEIR OWN SYSTEMS THE PRINCIPLES RELATING TO PRETRIAL DETENTION SET OUT IN THE EUROPEAN CONVENTION AND RESOLUTION. IN ALL COUNTRIES EXAMINED, EMPHASIS IS PLACED UPON THE EXCEPTIONAL NATURE OF PRETRIAL DETENTION. ALL COUNTRIES SET LIMITS ON THE OFFENSES WITH RESPECT TO WHICH THEY MAY ALLOW IMPOSITION OF DETENTION. ALL HAVE ADOPTED GUARANTEES AGAINST UNNECESSARY AND EXCESSIVE DETENTION: (1) THERE MUST BE CONVINCING EVIDENCE AGAINST THE ACCUSED, (2) THE GROUNDS ON WHICH DETENTION MAY BE ORDERED ARE LIMITED, (3) REASONS WHICH REFER SPECIFICALLY TO THE ACCUSED'S PERSONAL CIRCUMSTANCES MUST BE GIVEN AND (4) THE SYSTEMS OF REVIEW AND APPEAL MUST BE CLARIFIED. IN CONTRAST, THE DEVELOPMENT AND USE OF MEASURES OF SUBSTITUTION, SUCH AS CONDITIONAL RELEASES, VARY GREATLY. FOR EXAMPLE, IN BELGIUM THE ALTERNATIVE TO DETENTION IS MONEY BAIL, AND THIS IS NOT USED OFTEN. IN THE THREE OTHER COUNTRIES MORE SOPHISTICATED ALTERNATIVES EXIST FOR CONDITIONAL RELEASE. AS FAR AS THE FREQUENCY OF PRETRIAL DETENTION IS CONCERNED, FRENCH JUDGES REMANDED IN CUSTODY IN ABOUT 77 PERCENT OF THE CASES WHERE DETENTION WAS AVAILABLE, WHILE MAGISTRATES IN ENGLAND AND WALES DID SO IN ONLY ABOUT 19 PERCENT OF THE CASES. THE LENGTH OF DETENTION ALSO VARIES GREATLY AMONG THE COUNTRIES. IN FRANCE AND GERMANY, FOR EXAMPLE, CASES OF DETENTION OF 1 YEAR OR MORE ARE COMMON. IT IS CONCLUDED THAT THESE DIVERGENCIES RESULT PRIMARILY FROM THE SYSTEMS OF CRIMINAL PROCEDURE AND JUDICIAL HABITS THAT ARE UNIQUE TO EACH COUNTRY. A COMMON STANDARD OF THE RIGHT TO LIBERTY CAN BE USEFUL AND EFFECTIVE ONLY IF IT MAKES SUBSTANTIAL INROADS INTO THE NATIONAL SYSTEMS SO THAT ITS SCOPE DOES NOT DIFFER GREATLY FROM ONE COUNTRY TO ANOTHER. (AUTHOR ABSTRACT MODIFIED)