Detention vs Preventive Detention vs Prison Sentence
It is common for situations to arise, particularly in the media, in which terms such as "detention / detained", "preventive detention / preventive detention", or "(effective) prison sentence" are used.
It's also common for there to be confusion about their application and a lack of conformity between the decisions handed down and public opinion, since, for example, it's common to hear (and read) that "the criminal police "arrest" guy X who was committing a crime, and the judge then releases him" - with the associated value judgments - and that "it's obvious that he's guilty, he should be in prison"...
Therefore, without prejudice to a wide range of circumstances and realities that deviate from the applicable general rules, it seems convenient to distinguish - albeit slightly and succinctly - the three realities: detention, pre-trial detention and the prison sentence.
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DETENTION:
Articles 254ff of the Code of Criminal Procedure (C.P.P.) set out the general rules applicable to detention.
According to Article 254(1) of the C.P.P., the purpose of detention is "within a maximum period of forty-eight hours, for the detainee to be presented for trial in summary form or to be brought before the competent judge for first judicial interrogation or for the application or execution of a measure of restraint" (al. a)), and "to ensure the immediate presence or, if this is not possible, within the shortest period of time, but never exceeding twenty-four hours, of the detainee before the judicial authority in a procedural act".
In the context of detention, it is necessary to distinguish between detention in flagrante delicto and detention outside flagrante delicto.
[According to the provisions of article 256 of the Criminal Code, a "flagrante delicto is any crime that is being committed or has just been committed" (no. 1), as well as "the case in which the perpetrator is, immediately after the crime, pursued by any person or found with objects or signs that clearly show that he has just committed it or participated in it" (no. 2).
Thus:
In the case of flagrante delicto
a) for the commission of a crime punishable by imprisonment, and of a public nature (which only needs to be brought to the attention of the competent authorities - e.g. domestic violence), any judicial authority or police authority may make the arrest, as well as any person, under specific conditions (Article 255(1) and (2) of the Criminal Code);
b) in the case of a crime of a semi-public nature (which depends on a complaint - e.g. simple physical injury) the arrest is only maintained when, in an act following it, the holder of the respective right (to complain) exercises it (no. 3 of art. 255 of the C.P.P.);
c) in the case of a crime of a private nature (which depends on a complaint, the constitution of an assistant and a private prosecution - e.g. insult), there is no place for an arrest in flagrante delicto, but only for the identification of the offender.
On the other hand, outside of flagrante delicto,
On the other hand, out of flagrante delicto,
a) under the terms of Article 257(1) of the Criminal Procedure Code, the arrest will be made by warrant issued by the judge or, in cases where pre-trial detention is admissible, by the Public Prosecutor's Office:
"a) When there are well-founded reasons to believe that the person concerned would not voluntarily appear before a judicial authority within the time limit set;
b) When one of the situations provided for in Article 204, which only detention would allow to be safeguarded, occurs; or
c) If it is essential for the protection of the victim"
b) under the terms of Article 257(2) of the Criminal Procedure Code, the criminal police authorities may order detention in the following cases:
"a) If it is a case in which pre-trial detention is admissible;
b) There is evidence to substantiate the fear of flight or the continuation of criminal activity; and
c) It is not possible, given the situation of urgency and danger of delay, to wait for the intervention of the judicial authority."
Thus, in general terms, the primary purpose of detention will be, within 48 hours, to be brought to trial in summary proceedings, for the first judicial interrogation, or for a coercive measure to be applied; or, within 24 hours, to ensure the presence before a judicial authority in a procedural act, with various legal requirements underlying its application.
(However, the 48-hour deadline, for example, to start the judicial interrogation with a view to the possible application of a coercive measure, refers to the start of the interrogation - and not to its conclusion)
In view of the time limits / duration of its validity and the underlying grounds, the analysis of the factual assumptions underlying its application will naturally be brief and simplified.
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PREVENTIVE CUSTODY
Preventive detention, on the other hand, is a coercive measure, the general rules of which are set out in articles 196 and 196s of the Criminal Procedure Code.
Underlying the application of coercive measures are the principles of appropriateness, necessity and proportionality.
With regard to this matter, underlying the object of analysis, it seems pertinent to refer to the Term of Identity and Residence and Preventive Detention, as two opposing poles, and as the measures most commonly referred to in the media.
Thus, with regard to the repeatedly referred to Identity and Residence Term (IRT), this is a "basic" coercive measure, which is automatically applied when a certain individual is constituted as a defendant, and whose essential purpose is to indicate an address of their choice, at which the various notifications will be made, and whose deadlines indicated therein will run presuming their knowledge, with any lack of knowledge being attributable to the defendant (cfr. art. 196 of the Criminal Procedure Code), so that the process doesn't take too long due to the alleged impossibility of exercising his rights of defense.
All other coercive measures (i.e. with the exception of the aforementioned R.I.T.), and in accordance with article 204 of the C.P.P., can only be based on one of the following circumstances:
"a) Escape or danger of escape;
b) Danger of disturbing the course of the investigation or the investigation of the case and, in particular, danger to the acquisition, preservation or veracity of evidence; or
c) Danger, due to the nature and circumstances of the crime or the personality of the accused, that he will continue criminal activity or seriously disturb public order and tranquillity."
As pre-trial detention is the most severe measure of coercion, it must be applied cumulatively,
a) one of the following situations set out in Article 202(1) of the Criminal Code: i.e, "a) There are strong indications of a felony punishable by a maximum prison sentence of more than 5 years; b) There are strong indications of a felony corresponding to violent crime; c) There are strong indications of a felony corresponding to terrorism or highly organized crime punishable by a maximum prison sentence of more than 3 years; d) There are strong indications that an intentional crime of aggravated physical injury, aggravated theft, aggravated damage, computer and communications fraud, receiving, falsifying or counterfeiting a document, attacking the safety of road transport, punishable by a maximum prison sentence of more than 3 years, has been committed; e) there are strong indications that a felonious crime has been committed involving possession of a prohibited weapon, possession of weapons and other devices, products or substances in prohibited places or a crime committed with a weapon, under the terms of the legal regime for weapons and their ammunition, punishable by a maximum prison sentence of more than 3 years; f) the person in question has entered or remains illegally in national territory, or against whom extradition or expulsion proceedings are underway", and
b) all other coercive measures prove to be inadequate or insufficient.
It should be emphasized that both detention and pre-trial detention - despite the distinctions that have now been made and the purposes that both are intended to achieve and, consequently, the formalities and assumptions inherent in their application - are deprivations of liberty for procedural purposes and prior to any final conviction, the former having to be subsequently "confirmed" by the competent authority and terminated swiftly within the time limits indicated, and the latter being dependent on an interlocutory decision.
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PRISON SENTENCE
Underlying the conviction in a criminal case, after the legal procedures have been carried out, which range from the investigation phase, pre-trial investigation (eventual/factual) and trial (when applicable, safeguarding, for example, the forms of summary proceedings), is the imposition of penalties, both main and ancillary, and even substitute penalties.
Among the main penalties is imprisonment, in which the periods of deprivation of liberty (as well as the obligation to remain) and detention will be deducted.
Unlike detention and pre-trial detention, the prison sentence presupposes a judicial conviction, through a final decision (i.e. not subject to ordinary appeal or complaint) and is aimed at protecting legal assets and reintegrating the perpetrator into society, and is limited by the degree of guilt (art. 40 of the Penal Code).
As imprisonment is the most severe penalty, its essential application must be considered in light of the aforementioned purposes of the penalty, i.e. that other penalties (alternatives, substitution or even suspension of execution) are not sufficient, and the preference for non-custodial sentences is inherent in the application of the penalty.
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Thus, it is perfectly natural for the news to report the arrest of certain individuals and their subsequent release, without there being any reason to repudiate the decisions handed down, since the prerequisites for the arrest will eventually be to present a certain individual to an investigating judge, or even just to the Public Prosecutor, so that, based on the legal assumptions and grounds to be considered, he can determine the measure of coercion to be applied.
On the other hand, public censure judgments on how certain individuals should be imprisoned, without the conditions for pre-trial detention having been met - namely when it is for imminently personal reasons and is to be carried out immediately, there are no indications of flight or links with foreign countries, and there is no harm to the investigation - and without there being an actual conviction that has been finalized, also have no place in the light of all the above.
Strictly speaking, it is possible for an individual to be arrested in the same case, albeit at different stages, and then subsequently remanded in custody and finally sentenced to life imprisonment.
Just as only one or two of these situations may occur...
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