What is Pre-Trial Detention?
Pre-trial detention is the period during which a suspect is held in custody before their case is judged by a court.
Pre-trial detention consists of different phases, each requiring an assessment of whether there is sufficient suspicion and grounds to keep a suspect in custody longer. In each phase of pre-trial detention, the assessment is carried out by a different person/authority, and different requirements apply for the application of pre-trial detention.
The requirements for maintaining pre-trial detention become increasingly stringent the longer one remains in pre-trial detention, and the person/authority assessing the pre-trial detention becomes increasingly more significant.
What Forms of Pre-Trial Detention Exist?
Before pre-trial detention can occur, a suspect must first be arrested. Any law enforcement officer can arrest a suspect.
Pre-trial detention begins with detention for investigation, until recently known as detention for questioning. This phase lasts a maximum of 6 hours for an offense where pre-trial detention is not allowed, and 9 hours for an offense where pre-trial detention is allowed. The hours between 12:00 AM and 9:00 AM do not count towards the 9 or 6-hour period. Detention for investigation can be ordered by the (assistant) public prosecutor.
After detention for investigation, the public prosecutor can order the suspect to be taken into custody. The period of custody lasts 3 days and can be extended by 3 days in case of extreme necessity. On behalf of the public prosecutor, the assistant prosecutor can also sign the order for custody or its extension.
Within 3 days and 18 hours after the arrest, a suspect must be brought before a judge to assess the legality of the custody. This legality check takes place before the examining magistrate.
Custody can only take place for an offense where pre-trial detention is allowed. More on this below.
After custody, pre-trial detention can be extended by 14 days at the request of the public prosecutor by the examining magistrate. This phase is called remand and is also the first phase of pre-trial detention.
The final phase of pre-trial detention is detention in custody. This is ordered at the request of the public prosecutor by the court in chambers and lasts a maximum of 90 days. However, this term is not fixed, and if the court wants to review the pre-trial detention earlier than within 90 days, they can order detention in custody for a shorter period. In addition to detention in custody, the court in chambers can also order – if a suspect is at large – the arrest of a suspect. This can happen, for example, if a suspect has never been in custody or if a suspect has been released at an earlier time and the court in chambers finds that the suspect should be taken into custody again. For arrest, as with detention in custody, it can be ordered for a maximum term of 90 days, and this term can also be shortened by the court.
In total, a suspect may remain in pre-trial detention for 18 hours + 3 days + (if custody is extended +3 days) + 14 days + 90 days = 107 (or 110) days and 18 hours. If the criminal case is still not ready for substantive treatment after this, a pro forma hearing will be scheduled. During the pro forma hearing, the court decides again on the continuation of the duration of pre-trial detention.
What are the Requirements for Applying Pre-Trial Detention?
This differs per form of pre-trial detention. For each form, the requirements and grounds for applying a particular form will be explained below.
For an arrest, there must be a suspect. This means there must be a reasonable suspicion of guilt that someone has committed a criminal offense.
Detention for investigation is ordered for a suspect if measures are necessary in the interest of the investigation. Additionally, detention for investigation can be used for questioning, preparing for questioning, identifying the suspect, and for delivering notifications in person.
Custody takes place in the interest of the investigation against a suspect. It can also take place for delivering documents about the criminal case to the suspect in person. Additionally, custody can take place to investigate the possibilities and desirability of requesting or issuing an order for pre-trial detention.
After custody, the conditions of pre-trial detention apply for the continuation of pre-trial detention. This requires a ground and a case. In addition to a case and a ground, there must also be a stronger suspicion against the suspect than a reasonable suspicion of guilt that they have committed a criminal offense. This stronger suspicion is called “serious objections”.
The cases of pre-trial detention are primarily important because, as already indicated, there must also be a case of pre-trial detention before a suspect can be taken into custody.
There is in any case a case of pre-trial detention if the offense to which the suspicion relates carries a statutory prison sentence of 4 years or more. In addition, the law mentions a number of other specific offenses. Pre-trial detention can also be applied if the suspect has no fixed residence or place of stay in the Netherlands and has committed an offense punishable by imprisonment.
In addition to a case of pre-trial detention, there must also be (at least) one ground to apply pre-trial detention. Possible grounds are:
- Flight risk;
- It concerns an offense punishable by imprisonment of 12 years or more and it could possibly lead to social unrest if the suspect were to be released (shocked legal order);
- Risk of recidivism of an offense punishable by 6 years or more maximum imprisonment, or an offense that could endanger health or safety or cause general danger to property (risk of recidivism);
- A previous conviction less than 5 years ago for threat, assault, theft, embezzlement, fraud, destruction, or handling stolen goods;
- Investigation that the police still need to conduct, which could possibly be frustrated or hindered if the suspect is released.
The anticipation principle also applies to pre-trial detention. This means that an order for pre-trial detention is in any case not given if serious consideration must be given to the fact that the suspect will not be imposed an unconditional prison sentence or a measure involving deprivation of liberty. Also, if the expected sentence or measure is lower than the duration of the order for pre-trial detention, this order will not be issued.
Where is Pre-Trial Detention Served?
In the first phases, up to remand, a suspect is detained at a police station. From remand onwards, a suspect serves their pre-trial detention in a remand center.
What Restrictions Can be Imposed on a Suspect During Pre-Trial Detention?
During pre-trial detention, a suspect is in principle allowed to have contact with the outside world. However, in the interest of the investigation, it can be determined that a suspect is subject to restrictions during pre-trial detention. This can include restrictions on receiving visitors, telephone communication, and correspondence. It also happens that a suspect is not allowed to read newspapers or watch television. However, a suspect is always allowed to have contact with their lawyer.
What Can a Lawyer Mean During Pre-Trial Detention?
It is of utmost importance to immediately engage a specialized criminal defense lawyer if you (or a loved one) are taken into pre-trial detention. At the moment you are arrested, you must immediately ask for a specialized criminal defense lawyer. Especially in this initial phase, it is of the utmost importance that you are advised and assisted during the police interrogation by a lawyer.
At the moment you are arrested, you can call 088-9336464 24 hours a day. You can also give the name of one of our lawyers as a preferred lawyer if the police ask you which lawyer they should engage for you. There are usually no costs involved, and our advice is always: Criminal case? Don’t take a lawyer, take a criminal defense lawyer!
