Understanding Pretrial Detention and Probation in Criminal Proceedings

Pretrial Detention

Pretrial detention is recognized as a necessary evil in all legal systems. It represents the most serious interference that state power may exercise in the sphere of an individual's freedom without a criminal conviction. A strong justification is needed to warrant it. It consists of the total deprivation of the accused's fundamental right to freedom of movement through their confinement in a prison facility for the conduct of criminal proceedings. It is implemented when it is the only way to ensure the normal course of criminal procedure. The only constitutionally legitimate purposes that detention may serve are to prevent the flight of the accused, which might hamper the investigation, and to prevent the concealment or destruction of evidence.

Types of Pretrial Detention

There are three different types of pretrial detention:

• Provided: The detention of the accused in a prison.
• Cut off: A total isolation of the accused from the outside world. Under this measure, they cannot receive visitors or make or receive communications in or out of prison. It may be ordered only in exceptional circumstances and where there is sufficient justification. It cannot be extended beyond five days.
• Dimmed: Appropriate when the defendant's internment poses a serious danger to their health and when imprisonment might frustrate the outcome of drug treatment, provided that the treatment had been initiated after the crime.

Duration and Review of Pretrial Detention

Pretrial detention can be decreed by the competent judicial authority over the entire criminal procedure, provided the budgets required by law are met. During the pretrial or summary phase, only the judge handling the investigation and forming the first steps may order provisional detention. From the moment the reasons leading to the order of remand disappear, the judge must make another decision in the same way to release the subject from that injunction. The situation of remand is reviewable, and care is taken to ensure it does not extend longer than necessary.

• When enacted to prevent concealment, alteration, or destruction of evidence sources, its duration cannot exceed six months.
• When decreed to avert the risk of flight of the accused or the danger of repeat criminal activity, the measure may not exceed two years if the offense carries a sentence of imprisonment exceeding three years. If the punishment is equal to or less than three years, it shall not exceed one year.

Probation

Probation is a precautionary measure that limits the freedom of movement of the defendant. It is adopted by the judge in charge of the investigation when they believe there are sufficient grounds for considering a person responsible for the commission of criminal acts and the circumstances necessitate restricting their freedom. The accused's right to liberty is limited, and they are subject to criminal proceedings. Parole is an intrusion into the sphere of an individual's freedom much less radical than prison and is taken to ensure the appearance of the defendant in the proceedings.

Obligations Under Probation

The defendant submitted for parole is obligated to appear in court or before another authority on the days specified in the resolution and as often as called before the judge. Otherwise, it does not prevent them from moving within the country at will, provided they comply with the obligation to appear. As an ancillary to this form of restriction of freedom, it can be accompanied by the retention of the passport to prohibit the defendant from leaving the country and moving abroad.