Detention In Custody Research Articles

Terms of detention in custody during court proceedings – a guarantee of the right to liberty and security of person

Terms of detention in custody during court proceedings – a guarantee of the right to liberty and security of person

ІСТОРІЯ СТАНОВЛЕННЯ ТА РОЗВИТКУ ЗАПОБІЖНОГО ЗАХОДУ У ВИДІ ТРИМАННЯ ПІД ВАРТОЮ НА УКРАЇНСЬКИХ ЗЕМЛЯХ (ХІІІ – ПОЧАТОК ХХ СТ.)

The article examines the genesis of preventive measures in the form of custody in criminal proceedings on the territory of modern Ukraine. Issues of the origin and development of detention in criminal justice were considered, which existed in Ukrainian lands during the long-term historical development of Ukrainian statehood with a time frame from the XIII century to Soviet times. The results of the analysis of the origin and evolution of custody in the system of preventive measures in the criminal process on the territory of modern Ukraine during the periods of Kyivan Rus, Cossacks, Austro-Hungarian and Russian empires in the historical aspect are presented. It has been proven that the emergence of a preventive measure in the form of custody took place in the kniaz period and found its consolidation in Russkaya Pravda, when a person could be arrested to be brought to court (of the kniaz). The preventive measure in the form of custody was developed in the tsarist period, when it was about being placed in prison, and custody reached its greatest development in the imperial period, in the Statute of Criminal Justice of 1864. Despite its progressiveness, detention in custody violated the rights of convicted persons, and was also characterized by particular severity and repressiveness, because this preventive measure caused suffering to people, humiliated human dignity and protected the political regime.

Examination of harshness of criminal liability in NDPS cases in India:

The Humans Rights Development Programme guidelines states that it shall be ensured that detention cannot be based solely on drug dependence or drug usage. ICCPR upholds that every person has the right to be presumed innocent unless proven guilty. But the NDPS Act in India reverses the onus and shifts the burden to the accused to prove that the acquisition is false. The mandatory presumption of law holding the culpable mental state strictly applies in NDPS law where it affects the right of the accused leading to 90% conviction rate in NDPS cases. The Supreme Court, in the case of Sharifbai v. Abdul Razak1, established that failure of producing the accused before a magistrate within the designated timeframe renders the detention unlawful. Additionally, a detained individual must be informed by the arresting officer of the reasons for their arrest and their right to bail. This ensures that the detained person has the opportunity to seek bail and prepare a defense in a timely manner. In the case of State of Rajasthan v. Balchand alias Baliay2, the Supreme Court emphasized that detention in custody is not necessary if the appearance of the accused can be ensured through other means. The court emphasized the principle that bail, not jail, should be the norm. The paper examines the rationale of providing liability in NDPS cases in India and the way ahead to balance both the menace at the same time the defenses available for alleged offenders alleged to have committed the respective offenses.

Reform of police custody: piecemeal tweaks, defunding, abolition or transformation?

This paper argues for the substantial reduction of the ambit of police custody, and for the regulation of police conduct in custody blocks. Detention in custody is widely used by the police to apply pressure on suspects to make confessions. This is oppressive and wasteful. Custody should be used much more sparingly and only where detention is necessary for safety reasons. Custody can in any case be a dangerous place for detainees. An average of up to 23 people die in police custody every year, including four detainees from Black, Asian and Minority Ethnic Heritage, a greater proportion than their percentage of the population. Regulation of police conduct in custody blocks is supposed to be carried out by the little-known statutory Independent Custody Visiting Scheme. The scheme enables members of the public to make unannounced visits to police stations and to check and report on the welfare of detainees. As the result of government policy and the power of the police, the visiting scheme is neither independent nor effective, fails to challenge the police, makes no discernible impact on their behaviour or on the deaths in custody figures, provides no measure of police accountability, and obscures the need for urgent reform. This paper recommends immediate implementation of these reforms because they would save lives.

Трансформация уголовного процесса для реализации концепции доверия

The article deals with the problem of the application of criminal sanctions to business entities. The author notes the need in modern business for existing mechanisms to get out of punitive situations within the framework of unjustified criminal prosecution. The statistics of acquittals is considered, on the basis of which the tendency of judicial practice – accusatory bias – is determined. It is deemed that currently there are high rates of satisfaction of investigators’ petitions for detention in custody. In this regard, the author raises the problem of insufficient protection of the freedoms and rights of the accused. Review of the current law enforcement practice shows that judges often duplicate the conviction, not taking into account the arguments of the defendant and the de-fense. In order to reduce the criminal law risks of doing business, the article offers a list of measures aimed at eliminating the accusatory bias and the transition to a mutually beneficial relationship of trust in terms of securi-ty.

Actual issues of calculating the term of imprisonment when set off the time of detention and house arrest

The subject of the study is to consider the issues regarding the set-off of the time spent in custody or house arrest at the time of punishment, both during the sentencing and during its execution.
 The purpose of the study is to disclose the problematic issues of calculating the period of detention subject to offsetting the term of imprisonment, the beginning of the term of serving a sentence of imprisonment. The procedure for setting off the time spent by a person under house arrest until a court verdict comes into force is considered if a court imposes a sentence that is not related to isolation from society.
 The main results of the study reflect problems in sentencing if the time of detention absorbs the sentence assigned to the defendant by the court, as well as the issues of applying preferential rules for setting off the time of detention in custody when sentencing for the totality of crimes and the totality of sentences, criminal of the law in time when the time in the sentence is set off, for crimes committed before July 14, 2018.
 As a fundamental direction, the scientific and practical validity of the criminal law policy and legislative processes, the optimization of the implementation of the criminal law are noted.

Detention and Remand in Custody: Comparative Legal Analysis

The paper analyzes the legal regulation of detention in custody of persons confined on suspicion of committing a crime, as well as of persons in respect of whom a measure of restriction in the form of remand in custody was chosen. The norms of the Federal Law “On detention in custody of suspects and accused of committing crimes”, as well as the Criminal Procedure Code of the Russian Federation relating to these relations are considered. The differences between the two types of custody are investigated: “detention” and “remand in custody”. The author identifies six fundamental criteria underlying the difference between the two types of custody: the grounds for the detention; a person or body authorized to decide on detention in custody; duration of custody; custodial facility; legal status of persons in custody; grounds for release. It is concluded that it is necessary to revise the Federal Law "On detention in custody of suspects and accused of committing crimes", changing its structure on the basis that the law actually regulates two independent processes: taking into custody when detaining a person and detention in custody when choosing a measure of restriction in the form of remand in custody.

ТРИМАННЯ ПІД ВАРТОЮ В КРИМІНАЛЬНОМУ ПРОЦЕСІ РЕСПУБЛІКИ БІЛОРУСЬ: УДОСКОНАЛЕННЯ РЕГЛАМЕНТАЦІЇ ТА ПИТАННЯ ДОКАЗУВАННЯ (ПОРІВНЯЛЬНО-ПРАВОВИЙ АНАЛІЗ)

The article analyzes the peculiarities of applying a measure of procedural coercion in the form of detention in the criminal procedural legislation of the Republic of Belarus, as well as in the criminal process of Ukraine and the Republic of Kazakhstan. The positions of scientists in the field of criminal procedure, who conducted research on this issue, are analyzed. The key positions of the proceduralists regarding the basic regulatory aspects of the application of a preventive measure in the form of detention are considered. Attention is focused on the fundamental provisions of the functioning of the system of procedural compulsion and the application of a preventive measure in the form of detention in custody in particular. The analysis of the positions of the legislators of the Republic of Belarus, the Republic of Kazakhstan and Ukraine regarding the issue of normative regulation of the procedure for applying a measure of procedural coercion in the form of detention is carried out. The authors of the article emphasize the key aspect of the preventive measure in the form of detention in the form of its extraordinary impact on the observance of human and civil rights and freedoms in criminal proceedings. This circumstance is especially relevant in respect of the right of participants in criminal proceedings to freedom and personal inviolability. In this regard, theoretical concepts are considered and the content of international law on this issue is analyzed. The practical feasibility and normative possibility of using other, more humane methods of influencing suspects accused in criminal proceedings are analyzed. The article focuses on the normative procedure for the application of bail as an alternative procedural measure of isolating a person during detention in the legislation of the above states. The article analyzes the procedural features of the normative regulation of the use of pledge in the legislation of Ukraine and the Republic of Kazakhstan. The author's position on these issues, as well as proposals for optimizing the criminal procedural legislation of the Republic of Belarus regarding the regulation of the use of detention are formulated.

ИЗБРАНИЕ МЕРЫ ПРЕСЕЧЕНИЯ В ВИДЕ ЗАКЛЮЧЕНИЯ ПОД СТРАЖУ И СРОКИ СОДЕРЖАНИЯ ПОД СТРАЖЕЙ: НЕКОТОРЫЕ ТЕОРЕТИКО-ПРАВОВЫЕ ВОПРОСЫ

One of the significant problems in contemporary domestic criminal proceedings is the issue of uniform, lawful and justified application of preventive measures in the form of remand in custody. This concerns both the selection of this measure of procedural coercion and the extension of the period of detention in custody. An analysis of scientific publications, legisla-tion, and the positions of the Constitutional Court, the Supreme Court and the European Court of Human Rights suggests the need to improve the provisions of the Code of Criminal Proce-dure regulating the application of this preventive measure. Under Article 109 of the Code of Criminal Procedure, which specifies the duration of remand in custody, remand in custody during the investigation of an offence may not exceed two months; if it is impossible to complete the preliminary investigation within that period and there are no grounds for changing or quashing the preventive measure, the period may be extended to six months. Further extensions (up to 12 months) may be made in respect of persons accused of serious or particularly serious offences only when the criminal case is particularly complex and there are grounds for choosing this preventive measure. The period of detention (up to 18 months) can be extended at the pre-trial investigation stage only in exceptional cases in respect of persons accused of especially grave crimes. As a general rule, this period is the maximum and no further extension is permitted. The exception to this rule is the extension of the period of remand in custody until the accused and his or her counsel have been informed of the case file (up to 30 days) or, if that is not sufficient, for a longer period of time. After the pretrial investigation has been completed, the period of remand in custody may also be extended by the court, on application by the investigator or the person conducting the initial inquiry, to ensure that the prosecutor, and also the trial court, takes account of the period provided for in article 221, paragraph 1, or article 226, paragraph 1, or article 226.8, or article 227, paragraph 3, of the Code of Criminal Procedure (article 109, paragraph 8.1 of the Code). The time limit may also be extended in the cases referred to in paragraph 8.2 of Article 109 of the Code of Criminal Procedure - to ensure that the higher prosecutor, as well as the trial court, takes decisions on the received criminal case for a period, the length of which is deter-mined by taking into account the time limits referred to in paragraph 4 of Article 221, or paragraph 4 of Article 226, or paragraph 4 of Article 226.8, as well as paragraph 3 of Article 227 of the Code of Criminal Procedure. Thus, the current Code of Criminal Procedure of Russia allows for a reasonable length of detention and does not set a time limit for a person under arrest to be held in strict isolation from society, limiting detention to an overall limit of 18 months only during the pre-trial investigation. This is because even very long periods of detention may be compatible with Article 5 § 3 of the European Convention. Article 5 § 3 of the European Convention on Human Rights, as the safeguards in that provision do not imply any permissible period of detention beyond which it would automatically be breached or guarantee compliance with it.

Максималната продължителност на мерките за неотклонение задържане под стража и домашен арест по наказателни дела

The maximum duration of the detention in custody and house arrest measures in criminal cases is researched. A number of issues have been considered regarding the calculation of the term and its initial and final moments, including the hypotheses related to the returning of the case to the prosecutor by the court, the taking of the measures against an accused party detained on different grounds, as well as in view of a modification of the legal qualification of the indictment, establishing a different maximum duration under Art. 63, para. 4 of the Criminal Procedure Code. An emphasis has been placed on the disputable aspect of the duration of the period in regard to underage accused parties. A necessity to introduce a maximum period of detention in custody and house arrest,including also the court phase of the trial, has been acknowledged.

Detainees in Police Custody in Yorkshire, United Kingdom: A Survey of the Common Mental Health Problems

Purpose: The purpose of this paper is to identify and study the common mental health problems presented by detainees in police custody as well their demographic characteristics. This would help to create awareness and sensitise health care practitioners working in custody, as well as custody staff towards early recognition and detection of cases, which should facilitate the health promotion and psycho social education of detainees and reduce the overall clinical risk in custody. Design/Methodology: The 'anonymised custody records' of a random sample of two hundred and fifty eight detainees in police custody as well as the Forensic Medical practitioners contemporaneous notes including 'direct clinical interviews 'were examined. Data was collected from the Risk assessment record completed by the custody officers and record of medical assessment by forensic Medical Examiners using a 'Standard Questionnaire format ‘. Data then was analysed. Findings: Detainees admitted into custody experienced a wide range of mental health problems.The most common mental health problems seen in detainees during the period of study were, substance misuse, depression, self-harm, anxiety disorder, epilepsy and schizophrenia in that order. Other conditions were identified such as Learning disabilities. The sex distribution was Male (83%) and Female (17%). In terms of age distribution most of the detainees were in the age range 20-41 (67.5%) for both sexes. The female detainees tend to be older compared to males.Heroin use was the most prevalent drug of abuse in custody. Some of the most common medications prescribed for detainees are Methadone, Mirtazapine, Citalopram, Diazepam, Sorbutex, sodium valproate and Thiamine. Originality/Value: The findings from this study would help to further identify and bring awareness to the common mental health problems encountered in detainees in police custody. It would help to reduce clinical risks and facilitate a safer detention in custody. It would also help to address the issue of the limited availability of data regarding the mental health of detainees.

Dynamic and static factors associated with discharge dispositions: the national trajectory project of individuals found not criminally responsible on account of mental disorder (NCRMD) in Canada.

The majority of individuals found not criminally responsible on account of mental disorder (NCRMD) in Canada spend some time in hospital before they are conditionally or absolutely (no conditions) discharged to the community by a legally mandated review board. By law, the decision to conditionally discharge an individual found NCRMD should be guided by the need to protect the public, the mental condition of the accused, and the other needs of the accused, especially regarding his/her community reintegration. At the time of this study, Canadian legislation and case law required that the review board disposition should be the "least onerous and least restrictive" possible for the accused. This means that, if there is no evidence that the person poses a significant risk to public safety, he/she must be released. However, the Canadian Criminal Code does not specify the criteria that must be considered when making this risk assessment. This leads to two questions. (1) What predicts review board dispositions? (2) To what extent do disposition determinations reflect evidence-based practices? The present study examined dynamic and static predictors of detention in custody, conditional discharge (CD), and absolute discharge (AD) dispositions among persons found NCRMD across the three largest provinces in Canada. The National Trajectory Project (NTP) examined men and women found NCRMD in British Columbia (BC), Québec (QC), and Ontario (ON) between May 2000 and April 2005, followed until December 2008. For the purposes of this study, individuals who had at least one hearing with a review board were extracted from the NTP dataset (N = 1794: QC = 1089, ON = 483, BC = 222). Over the course of the study, 6743 review board hearings were examined (QC = 3505, ON = 2185, BC = 1053). Despite advances in the risk assessment field, presentation of a comprehensive structured risk assessment to the review board was not the norm. Yet our findings suggest that review boards were taking into account a combination of empirically validated static and dynamic risk factors, as represented by the items of the HCR-20 risk assessment scheme. Particular attention was being paid to the behavior of the patient between hearings (e.g., violent acts, compliance with conditions). Severity of index offense was associated with review board decisions; though index severity is not related to recidivism, it is an important consideration in terms of public perceptions of the justice system and can be related to better established risk factors (i.e., criminal history and prior violence). Historical factors had more influence on the decision to detain someone, while clinical factors were more influential on an AD decision. Disposition stability was the most common trajectory, meaning that a patient with a prior CD disposition was most likely to receive another CD disposition at the next hearing. Static and dynamic risk factors found in the HCR-20 influenced review board determinations, although presentation of a complete structured risk assessment is the exception, not the norm. Results suggest that clinicians recommending less restrictive dispositions are more likely to include a comprehensive risk assessment with their recommendation. An alternative explanation is that, when there is no comprehensive assessment of risk, the review board tends to be more cautious and apply more restrictive dispositions. The practice seems to be contrary to the legislation at the time of the study, given that there should be a presumption that the patient is not a significant threat.

Detainees in police custody in the Paris, France area: medical data and high-risk situations (a prospective study over 1 year)

The annual number of detainees held in police custody in France is approximately 700,000. Medical data regarding arrestees are scarce across countries. We present the medical characteristics of detainees kept in police custody, including addictive behaviours and high-risk medical situations. We conducted a prospective study over 1 year in a suburban area near Paris. A total of 19,098 medical examinations were performed on 13,317 individuals. The examinations mainly concerned male subjects (18,116 of 19,098, 95 %). Median age was 24 years (range 13-83). Medical examination was requested by the detainee in 6,638 of 16,801 cases (40 %). Assaults were reported in 4,052 of 17,312 cases (23 %) and occurred at the time of arrest in most cases (2,243, 13 %). A total of 2,394 of 13,317 detainees (18 %) had at least one chronic somatic disorder including asthma (603, 5 %), diabetes (263, 2 %) and arterial hypertension (205, 2 %). A history of psychiatric disorder was reported by 6 % of individuals (674 of 11,787). Regular alcohol drinking was reported by 58 % of detainees. Illicit drug use mainly involved cannabis (4,021 cases, 30 %). In 14,661 of 19,098 cases (77 %), detainees were considered to be unconditionally fit for detention in custody, and 274 detainees (1 %) were declared unfit to be detained. The present study showed a high frequency of alcohol or substance use and reported assaults or traumatic lesions in arrestees. Attending physicians should pay particular attention to addictive behaviours and traumatic injuries in arrestees, both for immediate care and for prevention.

Medical examination of fitness for police custody in two large German towns

Worldwide, there is a high risk of medical complications or death in police custody. This risk is often increased by unclear legislation, a lack of clearly defined responsibility and medical examination standards. Any solution to these problems requires as a very basis the systematic analysis of the medical examinations that determine whether a person is fit to be detained in custody. We analysed a total of 3,674 medical records on fitness for custody, taken from two large German towns (Halle/S and Bremen). The examined individuals were predominantly males or of a younger age. The indication in the majority of cases was acute alcoholic intoxication or drug withdrawal syndromes. Traumata and internal or mental diseases were also quite frequent. For approximately 50% of all cases, fitness for custody was declared on certain conditions. Only 39.8% were found to be unconditionally fit for detention in custody. In just under 10% of the cases, the person was found unfit for custody. These cases concerned mainly persons with psychological symptoms and advanced alcohol or drug withdrawal syndromes. We were able to show that the recent introduction of new police custody regulations in Halle/S had a significant influence on the medical decision on fitness for custody. Our detailed assessment has provided us with the basis to develop solutions for the improvement of medical care in police custody. The focus lies here on the organisation and legal regulation of the medical aspects of custody but also on policing and medical work.

Deaths in German police custody

According to the ministries of the interior of all German federal states, a total of 128 persons died in police custody between 1993 and 2003. An inquiry to the forensic university institutes and regional court doctors showed that, within this period, post mortems were conducted in 75 of these cases. We were able to include 60 of these 75 cases in our evaluation and deficiency analysis, which were carried out under assessment of the post mortem records and partly by making use of the subsequent medical expert reports and the results of criminal investigation. The most frequent cause of death was acute alcoholic intoxication, followed by cerebrocranial traumata, internal diseases and fatal poisonings with medical or illegal drugs. In 23 cases, the person taken into custody had been seen by a physician in order to determine the person's fitness for detention in custody. Of these 23 cases, 15 (65.2%) revealed deficiencies in various areas of medical activity. Police officers had made mistakes in 33 of the 60 cases (55.0%), mainly because they failed to seek medical assistance or did not monitor the person with sufficient frequency. Our retrospective study however showed that in 16 cases (26.6%) death was very probably not preventable even if the person had received all necessary care. Our study gives recommendations on how to improve various measures to increase the quality of medical attention given to persons taken into police custody.

Coercion for Asian conquest: Japanese militarism and Korean sport, 1938–45

In the third phase of Japanese colonialism in Korea, from 1937 to 1945, after the Sino-Japanese War in 1937, Japan became a militaristic state. It expanded onto the Asian mainland. Korea was an important military base in this military expansion. The colonial policy shifted from cultural amalgamation to military oppression. This period was the darkest and the most oppressive colonial period. In the line with the new colonial policy, the government closely watched nationalist suspects. It introduced the Regulation for the Observation of Korean Ideologists in 1936 and the Regulation for Detention in Custody in 1941 whilst it also carried out the “Cultural Erasure Policy”. Korean sport was seen as a part of this new colonial policy. Japan used sport to advance its militarism. Thus gymnastics for the Imperial Subject was introduced across society. Furthermore, military drill was performed in schools along with Japanese traditional martial arts.

The mental health status of adolescents released from custody: a preliminary study.

To describe the prevalence of mental health problems and the social circumstances of young offenders after their release from custody in a juvenile detention centre. The subjects were 37 adolescents from an original sample of 101 adolescents who had been remanded in a juvenile detention centre in Adelaide, South Australia. The adolescents were evaluated at the time of their initial detention in custody and again 1 year later. The adolescents reported having a large number of social and mental health problems after their release from custody. One year after their release, 32% of the adolescents scored above the recommended 'cut off' score on the Youth Self Report. This represents a rate of disorder three to four times higher than that reported by adolescents in the community and is comparable to the rate reported by adolescents attending mental health clinics. Adolescents remanded in juvenile detention centres experience continuing mental health problems after their release from custody. As well, they experience considerable social dysfunction. There is an urgent need for more active therapeutic follow-up of these young people.