Pre-trial detention

What is pre-trial detention?

Pre-trial detention, also known as preventive detention, is a form of detention that takes place prior to trial. During the pre-trial phase, under the direction of the Public Prosecutor’s Office, it is called pre-trial detention. Then, when the case is sent to the Court of First Instance, or even to the Court of Appeal, it is called detention on security grounds.

What is the purpose of pre-trial detention?

The purpose of pre-trial detention is either to (1) ensure the presence of the accused in the proceedings against him/her and at his/her trial, (2) prevent the accused from compromising evidence or influencing persons to be heard, or (3) prevent the accused from committing further offences.

Under what conditions is pre-trial detention ordered?

Pre-trial detention can only be pronounced if one of these three risks exists: 

1. Risk of leakage
2. Risk of collusion
3. Risk of re-offending or acting out

As this is a measure that is heavy on personal freedom and infringes on the principle of the presumption of innocence, it can only be pronounced if there are strong suspicions that the accused has committed a serious offence.

Who decides to order pre-trial detention?

Pre-trial detention is requested by the Public Prosecutor’s Office, but ordered by the Court of Coercive Measures. The accused has the right to be heard by this authority, which, in the course of its examination, may administer evidence (including hearing witnesses). However, the Court of Coercive Measures will not rule on the merits of the case, but will only examine whether the conditions for preventive detention are met (existence of strong suspicions, presence of one of the three risks and proportionality).

What is the duration of pre-trial detention?

Pre-trial detention is not limited in time. It is pronounced for a maximum of 3 months, but if the risk that justified its pronouncement is still realized at this deadline, it will be extended for a further period of up to 3 months at the request of the Public Prosecutor. There is no limit to the number of extensions. The only limit to pre-trial detention is the foreseeable sentence to which the defendant could be sentenced. Thus, the closer one gets to this duration, the less justified the pre-trial detention is from the point of view of proportionality, which should as a rule lead to release. As the case law currently stands, the fact that the accused would receive a conditional sentence with certainty plays no role in the proportionality test.

Is it possible to appeal against pre-trial detention?

Decisions made by the Court of Coercive Measures in matters of pre-trial detention may be appealed to the cantonal criminal appeal court and then brought before the Federal Court.

Against the decision of the Court of Coercive Measures ordering the provisional detention, it is possible to appeal to thecantonal authority of appeal in criminal matters within 10 days. These will be the Criminal Chamber of Appeal in the Canton of Vaud, the Criminal Chamber of Appeal in the Canton of Geneva, the Criminal Chamber of the Cantonal Court of Fribourg, the Criminal Chamber of Appeal of the Supreme Court of Berne, the Criminal Chamber of the Cantonal Court of Valais, the Criminal Chamber of Appeal of the Canton of Jura and the Criminal Appeal Authority of the Canton of Neuchâtel.

It is still possible to appeal to the Swiss Federal Supreme Court within 30 days against the decisions of the cantonal appeal authorities.

Is it possible to give guarantees instead of pre-trial detention?

Still in terms of proportionality, it is possible that other alternatives to pre-trial detention exist to mitigate the risk of flight, collusion or recidivism. These are known as alternative measures, which can be ordered by the Court of Coercive Measures instead of pre-trial detention.

Is it possible to be released despite a pre-trial detention order?

Notwithstanding a decision ordering pre-trial detention, the accused may at any time apply to the Public Prosecutor for release. In case of refusal, the latter will forward the request for release to the Court of Constraint Measures, which is competent to rule on it. 

Is it possible to execute a prison sentence instead of the pre-trial detention regime?

In some cases, it is possible to request theearly execution of a sentence instead of pre-trial detention. This regime is broader than pre-trial detention in terms of contacts with the outside world (mail, telephone, visits) and possibilities of occupation within the detention facility.

What can a lawyer do for a client on remand?

The lawyers of Penalex Avocats SA have a solid experience in issues of pre-trial detention and alternative measures. They will be able to advise you as closely as possible on your interests and obtain all the necessary evidence to support either a request for release, or alternative measures, or to file appeals against pre-trial detention with the cantonal appeal authorities or with the Swiss Federal Court.