Release from Custody in Case of Its Justification – Alternative Measures to Custody

Custody as an Ultima Ratio Institution

Custody, as a security criminal-procedural institution, should be used as an ultima ratio – this is a fact that can be called a notoriety. This statement can be justified and supported by arguments both by international treaties regulating human rights and fundamental freedoms, by the Constitution of the Slovak Republic, as well as by the provisions of Act No. 301/2005 Coll., the Criminal Procedure Code, as amended (the “Criminal Procedure Code”). A frequently used argumentative extension of the aforementioned legal provisions are court decisions that interpret individual provisions regulating custody; however, based on available knowledge, we observe that the justification of custody as an ultima ratio institution through historical interpretation is lacking in our domestic legal literature.

The predecessor of the current Criminal Procedure Code is Act No. 141/1961 Coll. on Criminal Court Proceedings (Criminal Procedure Code) (the “Old Criminal Procedure Code”). The Old Criminal Procedure Code, in its promulgated wording, stipulated in Section 67 that: “The accused may be taken into custody only if there are facts that give rise to concern, […]”. The Old Criminal Procedure Code entered into force on 9 December 1961, and during its more than forty (40) years of effectiveness, the cited definition changed at first glance only slightly, in that the word “facts” was supplemented by the attribute “specific.”

It is therefore evident that the part of the hypothesis common to all types of custody evolved in such a way that not merely some general or hypothetical facts justifying such a certain concern in a particular case were sufficient; on the contrary, there had to be specific facts justifying such a certain concern. According to the then Supreme Court of the Slovak Socialist Republic, such facts were understood to mean specific facts arising from the assessment of the nature of the criminal offence and the person of the perpetrator, which is a relatively broad and not very specific definition.

The Criminal Procedure Code has, so to speak, overhauled this provision and, already in its promulgated wording, gave a new shape to the part of the hypothesis that is common to all types of custody. In addition to the fact that the said provision was moved to Section 71(1) of the Criminal Procedure Code, it was, and still is, much more developed: “The accused may be taken into custody only if the facts established so far indicate that the act for which the criminal prosecution was initiated was committed, has the characteristics of a criminal offence, there are grounds for suspecting that this act was committed by the accused, and from his conduct or other specific facts there arises a reasonable concern that […]”. As a side note, we add that the wording of this provision has remained unchanged from its adoption to the present day.

The cited provision in its new form explicitly stipulates “facts established so far” instead of “specific facts.” The explanatory memorandum to the Criminal Procedure Code does not comment on the reworking of the part of the hypothesis common to all types of custody, but instead addresses only the purpose of custody and the grounds for custody themselves. However, we are of the view that a comparison of these verbal constructions allows the conclusion that the legislator emphasised that the facts must be facts established so far; not facts that can reasonably be expected in the future but have not yet occurred, and at the same time they must be facts that have been established, i.e., sufficiently proven. Even in the case of specific facts, it is logical that they should be specific facts established so far; however, their explicit designation as “facts established so far” places emphasis on the requirement of their “establishment.” In our opinion, by this rewording, the legislator contributed to strengthening the material conditions of custody, which emphasize the careful assessment of all facts established so far. Doubts concerning (i) the factual circumstances of taking into custody and (ii) the existence of one of the grounds for custody should therefore, a fortiori, be even less permissible under the current legislation than under the older legislation.

The cited provision, in its revised form, expressly refers to facts established so far instead of specific facts. The Explanatory Report to the Code of Criminal Procedure does not comment on the reworking of the hypothesis common to all types of custody; rather, it addresses only the purpose of custody and the grounds for custody themselves. However, in our view, by comparing these linguistic constructions, one may conclude that the legislator emphasized that the requirement is for facts already established, not for facts that may reasonably be expected in the future but have not yet occurred, and at the same time, they must be established or sufficiently proven facts. Even in the case of specific facts, it is logical that they should be facts already established; nevertheless, their express designation as “facts established so far” underscores the requirement of their establishment. Through this rephrasing, the legislator, in our opinion, contributed to strengthening the substantive conditions of custody, which emphasize the careful assessment of all facts established so far. Doubts concerning (i) the factual circumstances of taking a person into custody and (ii) the existence of any grounds for custody should therefore be, a fortiori, even less permissible under the current legislation than under the previous one.

In addition, the cited provision also strengthens the principle of the presumption of innocence, since at first glance it places strong emphasis on the fact that it is only an act with respect to which there are grounds for suspecting that the accused committed it. Custody is not a punishment, and therefore cannot have a punitive character, nor is custody a decision on the guilt of the accused; such a decision can only be a final convicting judgment of a court. Last but not least, if from the conduct of the accused or from other specific facts there arises a reasonable fear, only then is it possible to proceed with pre-trial detention of the accused.

With regard to defense strategy, we are convinced that the focus should not lie exclusively on refuting the existence of grounds for custody. In our experience, when preparing complaints against decisions on custody or requests for release from custody, it is more appropriate to begin not by asking: “Why do the grounds for taking the accused into custody not exist?”, but rather by focusing on the question: “Are there reasons why the accused should be released from custody?” It has proven that this, at first sight, seemingly minor rephrasing of the key question before drafting the aforementioned criminal submissions completely changes both the content of the submission and the central argument we seek to convey to the court.

Release from Custody and Substitution of Custody

If an order has been issued for taking the accused into custody, the accused may in principle defend himself in two already mentioned ways. First, the accused may, through counsel, file a complaint against the custody order pursuant to Section 83(1) of the Code of Criminal Procedure. Defense counsel generally files such a complaint automatically once it has been decided that the accused will be remanded in custody. Second, the accused may, through counsel, file a request for release pursuant to Section 79(3) of the Code of Criminal Procedure, on the basis of which the accused may request release at any time, even during ongoing pre-trial custody.

Where it is evident to defense counsel that one of the grounds for custody is present, we see no sense in conducting the defense in a manner that denies the existence of the grounds for custody in the specific case. Of course, it is not excluded that defense counsel may file a complaint against the order on custody, arguing that the grounds for custody are not met even if they clearly are; however, the likelihood of success of such a complaint is very low.

Our empirical conclusion is that defense counsel has a much greater chance of success if he carefully argues in favor of substituting custody than if he seeks to avoid custody altogether. The role of defense counsel under criminal law theory is to point to evidence (facts) in favor of the accused and to seek the most favorable decision possible for the accused. Criminal law theory further provides that the most favorable decision for the accused does not always mean only the discontinuance of the criminal proceedings or an acquittal, but sometimes also the imposition of a more lenient sentence by a conviction, or a conditional discontinuance of the proceedings, depending on the individual circumstances of the case.

Therefore, if one of the grounds for custody is objectively given, the most favorable decision for the accused is, per analogiam, the substitution of custody with one of the alternative measures to custody set out in Section 80 et seq. of the Code of Criminal Procedure. Defense counsel should therefore fulfill his role mentioned above and seek the most favorable decision, which in relatively clear cases is not complete avoidance of pre-trial detention but the imposition of an alternative measure to custody, i.e. substitution of custody. By substituting custody, the court confirms the existence of the ground for custody, but at the same time concludes that the purpose of custody can be achieved by a less severe interference with the rights of the accused, in line with the principle of restraint set forth in Section 2(2) of the Code of Criminal Procedure.

Alternative measures to custody are (i) a guarantee, a promise, or supervision pursuant to Section 80 of the Code of Criminal Procedure; and (ii) a financial guarantee pursuant to Section 81 of the Code of Criminal Procedure. To reinforce the purpose that would otherwise be achieved by custody, the court may also impose (iii) one or more appropriate restrictions or obligations under Section 82 of the Code of Criminal Procedure. With regard to the prosecution and the court, a compromise solution is, in our view, to choose, in the case of flight risk custody or preventive custody, a compromise in the form of a properly designed alternative measure to custody, which is a demanding task for defense counsel. Collusive custody is deliberately not mentioned, as under Section 80(1) of the Code of Criminal Procedure it cannot be substituted: the purpose of collusive custody can only be fulfilled if the risk of contact with persons whom the accused could influence is fully eliminated – and it can only be fully eliminated if the accused is completely isolated from those persons.

If, however, the accused allegedly committed, for example, the criminal offense of disorderly conduct under Section 364(1)(d) of Act No. 300/2005 Coll., the Criminal Code, as amended (the “Criminal Code“), by damaging seats at football stadiums and unlawfully using pyrotechnics, then it is arguably not necessary that the accused be held in preventive custody. We believe that the same purpose will be achieved if the accused is required to provide a financial guarantee and, at the same time, is prohibited from attending designated places under Section 82(1)(c) of the Code of Criminal Procedure, in this case football stadiums, or prohibited from attending public events (in this case football matches). If the accused regularly attends various football matches, but tends to damage seats only at matches of a specific football club, then it is possible to prohibit him from attending only the matches of that specific club, or to require him, at the time of that club’s match, to report to a probation and mediation officer under Section 82(1)(d) of the Code of Criminal Procedure. By this logic, the same approach can be applied in any other case. As noted, defense counsel in each case decides among several possible alternatives.

There are many appropriate obligations and restrictions that may strengthen the purpose that would otherwise be achieved by custody, and therefore it is always the role of defense counsel to carefully find a balance between the interests of the accused, the prosecution, and the court. Otherwise, if the obligations and restrictions imposed on the accused are inappropriate or insufficient to strengthen the purpose that would otherwise be achieved by custody, defense counsel (and especially the accused) risks the rejection of the complaint against the custody order or of the request for release with a simultaneous motion for substitution of custody.

Rejection of any such submission is, of course, undesirable, because, for example, in the case of a request for release, it may, pursuant to Section 79(3) in fine of the Code of Criminal Procedure, be filed again only after thirty (30) days have passed from the date the decision on the previous request became final, unless the new request is based on different grounds. At the end of the day, defense counsel should therefore seek the most favorable decision also in the form of, for example, a financial guarantee combined with appropriate obligations and restrictions; and the most favorable decision is, in our view, the one with the greatest chance of success, even at the cost of a higher financial guarantee and “stricter” obligations and restrictions, because on this basis the accused avoids pre-trial custody (if in line with client instructions). However, if the court disagrees only with the amount of the financial guarantee and rejects the request for release solely on the ground of an insufficient guarantee, defense counsel may file a new request even before the expiry of the thirty (30) day period, provided that a higher guarantee is offered.

In the case of preventive or flight risk custody, defense counsel may also argue that substitution of custody can achieve the purpose that would otherwise be achieved by custody even more effectively. Alternative measures to custody are not custody, even though they are conditioned upon the existence of grounds for custody and fulfill or replace its safeguarding function in the proceedings. This means that the duration of alternative measures to custody is not limited by the statutory time limits for custody established in Section 76 of the Code of Criminal Procedure, and they may therefore be imposed on the accused for a longer period than lawful pre-trial detention would allow.

It should also be mentioned that in a complaint against a custody order or in a request for release it is necessary to formulate the motion for substitution of custody with one of the alternative measures clearly and unambiguously. A mere statement by defense counsel that custody is not necessary is not sufficient. The Constitutional Court of the Slovak Republic explicitly addressed the formulation of a motion for substitution of custody, stating: “The defense counsel in the complaint against the District Court’s order stated: ‘In violation of Sections 189(1)(a), (c) and 80(c) of the Code of Criminal Procedure, the judge for preliminary proceedings in his decision on the extension of the custody period did not address all the possibilities of alternatives to custody, and in his decision did not indicate any reasoning by which he was guided in determining the extension of the period by another six… months… in the interest of addressing the objection of an earlier possible conclusion of the investigation.’ Such wording can hardly be regarded as a clear, explicit, distinct, and definite request to substitute the complainant’s custody with a less severe measure, namely supervision by a probation and mediation officer, which the Regional Court would otherwise have been obliged to address in the reasoning of its decision.“

Conclusion

Summa summarum, if before drafting the submission we ask the key question: “Are there reasons why the accused should be released from custody?”, then in the submission we will answer it as follows: yes, there are reasons why the accused should be released from custody, because the purpose of custody can be achieved in another way. From the standpoint of defense strategy, it is not appropriate to deny what is obvious – in this case, the existence of grounds for custody; rather, it is more appropriate to focus on how custody may be effectively substituted.

In arguing for substitution of custody, we also consider it appropriate to rely on the historical interpretation of the provisions on custody. This may be briefly summarized as follows: through successive amendments and the adoption of the new procedural code, the legislator has emphasized custody based on facts established so far, not on facts that may reasonably be expected in the future but have not yet occurred, and these must be duly established or sufficiently proven facts. If defense counsel identifies even partially insufficiently proven facts, this constitutes a strong argument in favor of avoiding pre-trial detention altogether. If, however, the facts are sufficiently proven, it is more appropriate to seek alternative measures to custody.

In line with all of the above, in several cases we have succeeded either in altogether avoiding pre-trial detention or in having it substituted for the accused we represented, even where at first sight the chances of avoiding custody or having it substituted seemed almost nil. There is no doubt that defense counsel should be capable of finding a compromise solution that benefits the accused as well as the court and the prosecution, thereby unquestionably fulfilling one of counsel’s duties – to advance the interests of the accused successfully.

A compromise solution is also significant because a truly compromise-based solution is difficult to oppose or dismiss. The court, according to the Constitutional Court of the Slovak Republic, is obliged to address why substitution of custody is not imposed if the defense proposes it: “When deciding on custody, the courts are obliged to consider all possibilities for substituting custody with less severe measures provided for by the Code of Criminal Procedure, and in the reasoning of their decision the courts are obliged to address those measures whose use was proposed by the complainants or which could reasonably have been applied.” Otherwise, accused persons and defense counsel who aim exclusively at entirely avoiding custody without proposing alternative measures may fail.

List of Sources Used

1. ČENTÉŠ, J., KURILOVSKÁ, L., ŠIMOVČEK, I., BURDA, E. et al. Code of Criminal Procedure I. Commentary. Bratislava: C. H. Beck, 2021, ISBN 978-80-89603-88-6, 2568 p.
2. LACIAK, M. The Right to Defense and Its Forms in Criminal Proceedings. Bratislava: Wolters Kluwer SR, 2019, ISBN 978-80-571-0018-8, 119 p.
3. Decision of the Supreme Court of the Slovak Republic of September 12, 2017, file no. 2Tost/28/2017 (R 44/2018).
4. Decision of the Supreme Court of the Slovak Republic of September 21, 2006, file no. 2Toš/37/2006.
5. Decision of the Supreme Court of the Slovak Socialist Republic of February 22, 1988, file no. 4To/12/88.
6. Decision of the Constitutional Court of the Slovak Republic of March 15, 2016, file no. III. ÚS 144/2016.

References

1. Decision of the Supreme Court of the Slovak Socialist Republic of February 22, 1988, file no. 4To/12/88.
2. ČENTÉŠ, J., KURILOVSKÁ, L., ŠIMOVČEK, I., BURDA, E. et al. Code of Criminal Procedure I. Commentary. Bratislava: C. H. Beck, 2021, ISBN 978-80-89603-88-6, pp. 339–355.
3. LACIAK, M. The Right to Defense and Its Forms in Criminal Proceedings. Bratislava: Wolters Kluwer SR, 2019, ISBN 978-80-571-0018-8, p. 39.
4. Tamže
5. Decision of the Supreme Court of the Slovak Republic of September 21, 2006, file no. 2Toš/37/2006.
6. Decision of the Supreme Court of the Slovak Republic of September 12, 2017, file no. 2Tost/28/2017 (R 44/2018).
7. Decision of the Constitutional Court of the Slovak Republic of March 15, 2016, file no. III. ÚS 144/2016, published in the Collection of Findings and Resolutions of the Constitutional Court of the Slovak Republic under no. 44/2016.