Detention is not a punishment. It is a temporary restriction of the accused’s personal liberty to ensure the course of criminal proceedings and to prevent, for example, escape, influencing witnesses or continuing criminal activity. Yet in practice it can last a very long time and interfere with work, family and defence. It is therefore important to know when detention is possible, what types of detention are available, how long it can last and what means can be used to seek release.
Quick overview
Detention is only an option when a criminal prosecution has already been initiated and the specific facts show a fear of flight, obstruction of investigation or continuation of criminal activity. The court must always examine whether a more lenient measure, such as a written promise, supervision by a probation officer, a financial guarantee or an interim measure, is not sufficient. The total length of detention depends on the seriousness of the offence prosecuted and may be up to a maximum of one, two, three or four years; colonial detention has a specific shorter limit. In a custodial prison, the accused has a different regime from that of a convicted prisoner in custody and special rights apply in respect of visits, contact with counsel and the use of his own clothes.
Detention is an institution of criminal procedure, not a punishment. The accused may be remanded in custody only if the facts ascertained so far indicate that the act for which the prosecution has been instituted has occurred, that it has the characteristics of a criminal offence, that there are clear grounds for suspecting that the accused has committed it, and that at the same time the purpose of custody cannot be achieved by other measures. Detention cannot therefore be based on the general consideration that ‘it might be safer’. It must be based on the specific circumstances of the case.
At the same time, only the person against whom a criminal prosecution has been initiated may be taken into custody. It is therefore not enough to have police suspicion without further procedural steps. Moreover, the decision to remand in custody must also be duly substantiated by the facts.
In practice, we often see that people believe that detention follows automatically for more serious charges. However, this is not the case. Even for a very serious offence, the court always examines whether there is a specific reason for detention and whether one of the measures in lieu of detention is not sufficient.
Were you charged and prosecuted? The stakes are really high and it doesn’t pay to go through the criminal process without consulting an attorney.
The Criminal Procedure Code distinguishes three basic grounds for detention under Section 67 of the Criminal Procedure Code. The reasons why the accused is to be restricted in his or her liberty depend on these.
Fugitive detention is applicable when the particular facts show a well-founded fear that the accused will flee or go into hiding to avoid prosecution or punishment. Typical examples are situations where the accused cannot be immediately identified, has no fixed residence or faces a heavy sentence.
However, the mere threat of a higher sentence is usually not sufficient. The court must always show why flight is actually imminent in a given case.
Collateral custody is used to protect evidence. It is imposed if there is a risk that the accused will influence witnesses or co-accused who have not yet been questioned or otherwise obstruct the discovery of facts relevant to the prosecution. Typically, these are situations at the beginning of an investigation when key interviews have not yet been completed or there is a real risk of influencing other persons.
Time is often of the essence when it comes to remand in custody. As soon as the evidentiary reasons have passed, the accused must be released from this detention, or the detention may continue for another reason.
Pre-trial detention is used when there is a reasonable apprehension that the accused will repeat a criminal offence, complete an act which he has attempted or carry out an act which he has prepared or threatened to carry out. In practice, it is common, for example, in cases of repeated violence, recidivism of property, or where past behaviour already shows that there is a risk of further attack without intervention.
At the same time,the Criminal Procedure Code also provides for cases where detention cannot be imposed. In general , it is not possible to take into custody an accused who is prosecuted for a deliberate offence with a maximum penalty of up to two years or for a negligent offence with a maximum penalty of up to three years. However, this restriction does not always apply. The law expressly provides for exceptions, for example, if the accused has fled or gone into hiding, has repeatedly failed to appear before a summons, is of unknown identity, has already obstructed the clarification of the matter, has continued to commit criminal activities, or if, in the case of pre-trial detention, the effective protection of the victim requires the protection of his life, health or other similar interest.
At the same time, the accused shall be released from custody without delay if the reason for the custody ceases to exist or it is clear that, in view of the accused’s person and the nature and gravity of the case, the prosecution will not lead to the imposition of an unconditional prison sentence, and no statutory exceptions apply. This is practically an important safeguard against detention lasting longer than is really necessary.
If there is a ground for escape or pre-trial detention, the authority deciding on the detention may keep the accused at liberty or release him if it adopts one of the measures replacing detention. The law specifically mentions the guarantee of a trusted person or an interest group, a written promise by the accused, supervision by a probation officer and a precautionary measure. In addition, in the case of escape and pre-trial detention, a financial guarantee may also be considered.
In the case of supervision by a probation officer, the court may also impose other restrictions, such as the obligation to appear at specified times, to change residence only with the consent of the probation officer or to stay at a specified residence at specified times.
In practice, a common mistake is the idea that it is enough to “offer bail” and the court must release the accused. Money bail is an option, not an entitlement. The court always assesses whether it is sufficient in relation to the person of the accused and the nature of the case. Moreover, for some particularly serious offences, its use is limited.
A money bond under section 73a of the Code of Criminal Procedure is only applicable if there is a ground for escape or pre-trial detention. Its amount is determined by the authority deciding on the detention. Today, the Criminal Procedure Code sets a lower limit of CZK 10,000; there is no upper limit. The amount therefore depends on the nature and gravity of the case and the financial circumstances of the accused.
At the same time, it must be taken into account that a financial guarantee may be forfeited to the State if the accused flees, absconds, fails to appear at the criminal proceedings, repeats criminal activity or avoids serving the sentence imposed. In some cases, the proceeds of a financial guarantee may also be used to pay a fine, costs or a claim by the victim.
The decision to remand in custody is taken by the court or, in pre-trial proceedings, by a judge on the application of the public prosecutor. If custody is decided outside the main trial or a public session, the decision is always taken in a custody session.
The accused always attends the custody session; his/her participation may also be ensured by means of a videoconferencing device. The participation of the public prosecutor and the defence counsel is not always mandatory, but in practice the role of the defence counsel is crucial, as he/she may propose evidence and argue for the substitution of a lesser measure for custody. The custody session is held without public participation.
At the end of the detention session, the prosecutor, the defence counsel and the accused are given the floor for closing submissions and the decision is always announced in the detention session itself.
The judge set bail at $100,000…something similar to what we hear in most criminal proceedings in Anglo-Saxon law countries. But bail is also known in our legal system. Can it be used in any criminal proceeding? What is the amount of the bail and what is the condition for its imposition? We discuss this in our article.
Detention can only last for the time strictly necessary. The total duration of detention in criminal proceedings may not exceed:
Of this period, one third shall be spent on the preparatory proceedings and two thirds on the proceedings before the court. If the proceedings at that stage are not concluded in time, the accused shall be released no later than the last day of the relevant period.
Collateral detention has its own special rule: detention on grounds under Article 67(b) of the Code of Criminal Procedure may last no longer than three months. Only if it has been established that the accused has already actually influenced witnesses or co-accused or otherwise obstructed the clarification of the case, may the court decide to continue it beyond this period.
The period of detention shall be calculated from the date on which the accused’s personal liberty was restricted. Thus, if a person was arrested by the police the day before and only the following day the court decided on him, the detention starts from the moment of arrest.
Very short statutory time limits run after police custody. The police authority and the public prosecutor must act so that the detainee can be handed over to the court within 48 hours of his arrest; otherwise he must be released. Thereafter, the judge has 24 hours from the receipt of the prosecutor’s application to hear the detainee and decide whether to release or remand him in custody. Exceeding this 24-hour period is in itself a ground for release.
A complaint may be lodged against a decision on detention. It may relate to the detention itself, the continued detention, a change in the grounds for detention or a decision on a financial guarantee. The provisions on custody hearings shall apply mutatis mutandis to the determination of a complaint against a custody decision.
In addition, the accused shall have the right to apply for release from custody at any time after the decision on remand in custody has become final. Such a request shall be deemed to include a request for the adoption of a measure in lieu of detention. The application shall be decided without undue delay. If the request has been rejected and the accused does not give new reasons, he may repeat it after 30 days from the legal force of the last decision.
In pre-trial proceedings, the prosecutor shall decide on the request for release. If the request is not granted, it must be submitted to the judge within five working days at the latest.
The conditions of detention are regulated by the Act on Detention. Its purpose is not to punish, but to ensure the purpose of criminal proceedings and to establish the rights and obligations of defendants in custody. The regime in a remand prison is therefore different from serving a custodial sentence.
The accused has the right to use his own clothing, underwear and footwear in custody, provided that they meet hygienic and aesthetic conditions and that they are replaced at his own expense. If these conditions are not met, he shall use prison clothing.
Contact with the defence counsel is also very important. The accused has the right to receive visits from a defence counsel without restriction and the normal restrictions on visits do not apply. For routine visits, the accused has the right to receive visits from no more than four persons once every two weeks for ninety minutes. In justified cases, the prison governor may grant an exception. In the case of colonial detention, the conditions of the visit shall be determined by the penal authority.
The law also regulates correspondence and telephone calls. The accused may receive and send correspondence at his own expense without restriction, but it may be subject to control; on the other hand, communication with defence counsel is not subject to control. The accused may use the telephone only in the manner permitted by the prison and under the conditions laid down by law.
As regards the practical life in a detention centre, the specific rules may vary in detail according to the internal rules of each detention centre. The most common mistake made by families is that they base their decisions on their experience in another prison or on old information from the internet and do not check the current regime in a particular facility.
The fastest way is not just to “wait for the court”. The defense can proactively propose specific custody substitutes, providing evidence of a fixed residence, employment, family ties, an offer of a trusted person bond, a promise, supervision by a probation officer, or a monetary bond. In the case of collusive detention, it is often essential to monitor whether the main evidence that gave rise to the detention has already been taken. In the case of escape custody, it is crucial to refute the specific fear of escape, not just to claim in general terms that the accused is “not going anywhere”.
Moreover, the law enforcement authorities have a duty to review on an ongoing basis whether the grounds for detention still exist and whether it could be replaced by a lesser measure. In pre-trial proceedings, the judge must decide every three months at the latest, on the proposal of the public prosecutor, whether the accused remains in custody or is released.
Detention is an extraordinary interference with personal liberty and can only be used by the court when there is a specific fear of flight, influencing witnesses or continuing criminal activity and a lesser solution is not sufficient. The basic types of detention are escape, collusion and pre-trial detention. Their length is limited by law and law enforcement authorities must continuously review whether the grounds for detention still exist. In addition to detention, there are also substitutes for detention, such as a promise, supervision by a probation officer, a guarantee by a trustworthy person, an interim measure or a financial guarantee. In a remand prison, the accused has a special regime and retains, inter alia, a stronger right of contact with a lawyer than a normal prisoner in custody.
No. Detention is a measure in criminal proceedings to ensure the purpose of the proceedings. Imprisonment can only be imposed after conviction.
The mere threat of a higher sentence is not enough. There must be specific facts that establish one of the statutory grounds for detention.
Usually no longer than three months. Only in special cases where actual obstruction of the clarification of the case has been established may the court decide to continue it.
Sometimes it does, but only for escape or pretrial detention and only if the court accepts the money bond. It’s not an automatic entitlement.
You can apply at any time after the detention order becomes final. However, if your application is rejected and you do not give new reasons, you can reapply after 30 days.
Normally once every two weeks, a maximum of four people, for ninety minutes. There is a special regime for the defence counsel and visits are unlimited.
Yes, if it meets hygienic and aesthetic conditions and is replaced at your own expense. Otherwise, he uses prison clothing.
Were you charged and prosecuted? The stakes are really high and it doesn’t pay to go through the criminal process without consulting an attorney.
Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
In person and online. Just choose the appropriate service or opt for an independent consultation when you are unsure.
