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A criminal suspect may be detained before a final conviction has been issued by the court if there are grounds for detention. This detention can take the form of remand detention (also known as pre-trial) detention or preventive detention. The prerequisites for these detention orders and their respective procedures are explained below.
Remand detention is the deprivation of one’s personal freedom during pre-trial proceedings, whereas preventive detention is the deprivation of personal freedom between the receipt of the court indictment and either the final conviction, the release from detention or the commencement of custodial detention. Lawyers for criminal law in Zurich, Frauenfeld or St. Gallen will be happy to clarify the distinctions of these two terms for you.
Remand detention and preventive detention are permissible if the accused is urgently suspected of a misdemeanor or felony and it is seriously to be expected that they will evade criminal proceedings or the expected sanction by fleeing (risk of flight), that they will influence persons or interfere with evidence in order to impair the establishment of the truth (risk of collusion), or that they will significantly endanger the safety of others by committing serious felonies or misdemeanors after having previously committed similar criminal acts (risk of repetition). Remand detention and preventive detention are also permissible if there is a fear that the accused person will carry out their threat to commit a serious crime (risk of execution).
According to the case law of the Federal Supreme Court, a number of criteria must make the risk of flight appear probable, not simply possible. Criteria include the character of the accused, their family and social ties, their professional and financial situation, their links to the persecuting state and their contacts abroad (BGE 145 IV 503). The distinction between a probable and a possible risk of flight can be answered by a lawyer for criminal law in Switzerland.
The ‘risk of collusion’ requirement is intended to prevent the accused person from abusing their freedom to compromise the truthful clarification of the facts. According to case law, this criteria can be fulfilled by the accused’s previous conduct in criminal proceedings, from their personal characteristics, from their role and contribution to the crime in the context of the facts under investigation, from the personal relationships between them and the persons accusing them. In determining whether there is a significant threat of impairment to the criminal proceedings due to obfuscation, a record must also be taken of the testimony and evidence which could potentially be influenced, the seriousness of the criminal offences under investigation and the state of the proceedings (BGE 137 IV 122). An attorney at law for criminal law in Frauenfeld, Zurich or St. Gallen can help you consider your options in this situation.
The purpose of ordering remand detention or preventive detention on the grounds of the risk of repetition is to prevent the proceedings from becoming complicated and protracted by a constant stream of new offenses. Special prevention is the foundation of remand detention and preventive detention on the grounds of the risk of repetition. The Federal Supreme Court presupposes that the accused must threaten to commit serious misdemeanors or crimes, that the safety of others must be significantly endangered, and that there must be a serious fear of a repetition of the offense, which is to be assessed by means of a prognosis of recidivism (BGE 143 IV 9). An attorney for criminal law in St. Gallen, Zurich or Frauenfeld can give you information about whether a good or bad prognosis for recidivism exists.
If the accused person is arrested, the public prosecutor must question him or her without delay and give him or her the opportunity to comment on the suspicion of the crime and the grounds for arrest (Art. 224 para. 1 CPC). If the suspicion and the grounds for detention are confirmed, the public prosecutor must submit an application to the public prosecutor’s office within 48 hours of the arrest for the ordering of pre-trial detention or a substitute measure (Art. 224 para. 2 CPC). If the public prosecutor’s office waives such a request, the arrested person must be released immediately (Art. 224 para. 3 CPC). The compulsory measures court must make a decision on the release or the ordering of remand detention or substitute measures within 48 hours of receipt of the public prosecutor’s application (Art. 226 para. 1 CPC). After expiry of the period of remand detention, as determined by the compulsory measures court, the public prosecutor may submit a request for an extension of detention (Art. 227 para. 1 CPC). If the compulsory measures court has not limited the duration of detention, the request must be submitted before the expiry of three months’ detention (Art. 227 para. 1 CPC). The accused person may submit a request for release from custody to the public prosecutor’s office at any time. This applies to cases where the compulsory measures court has set a time limit of a maximum of one month within which the accused person cannot submit a request for release (Art. 228 para. 1 in conjunction with Art. 228 para. 5 CPC). If you need help with the various requests, a lawyer for criminal law in Switzerland can help you.
At the request of the public prosecutor, the compulsory measures court may order preventive detention as a continuation of remand detention if the accused is already in remand detention when the indictment is filed (Art. 229 para. 1 CPC). If the grounds for detention arise only after the indictment has been filed, the compulsory measures court may order preventive detention at the request of the court of first instance (Art. 229 para. 2 CPC).