Archive note: This text comes from the old archive of Nomika Epilekta and is preserved with care for historical and informational reading.

We have already dealt with the serious problem of the “institution” of pre-trial detention [Nomika Epilekta: “Pre-trial detention of a young mother is maintained”], which, as a rule (with the exception of the so-called “appeal judges - investigating judges”), is handled by young prosecutors and judges who, through lack of qualifications and information, act arbitrarily, depriving demonstrably innocent people of their liberty, without consequences for their service advancement, which ought to end in immediate expulsion from the judiciary.

Thus, without reason, persons who are gravely ill, mentally ill and in need of urgent medical care, pregnant women and women about to give birth, young people, foreigners because they are foreign and therefore “flight risks”, and other needy and vulnerable persons are placed in pre-trial detention. All these people are piled into wretched prisons, which are not sufficient to house the innumerable convicted prisoners, to whom is added the great multitude of unjustifiably pre-trial detainees, with the result that our country is discredited at European and global level and is condemned through the imposition of sanctions, because the competent “bodies” tolerate inhumanity, misery and illegality.

According to the law, pre-trial detention is an “ultimate measure” (the last measure), which may be imposed on accused persons only by way of exception, because the Constitution absolutely prohibits deprivation of liberty except in the exceptional, minimal cases provided for by law.

Contrary to the provision of the Constitution, pre-trial detentions tend to become the rule, often imposed against accused persons in whose favour the so-called “presumption of innocence” applies and is shamelessly violated. Specifically, the accused is mandatorily considered, and must be treated by everyone, especially judicial officers, as innocent until he is tried so that his innocence or, conversely, his guilt is confirmed by an irrevocable judicial decision; only in the event of an irrevocable conviction does the presumption of innocence cease to apply. That presumption is also provided for by Article 48 § 1 of the Charter of Fundamental Rights of the European Union, which since 01.12.2009 has prevailed, that is, takes precedence, over the Constitution.

Irrevocable conviction of the accused means that the convicting decision against him can no longer be challenged by a legal remedy (appeal and/or cassation).

From the mass media we often learn that many accused persons are taken to prison without having been tried, where they remain detained for many months without the issuance of an irrevocable convicting decision.

The law provides for a maximum limit of pre-trial detention of eighteen months only for serious felonies, such as homicide.

Investigating judges, in order to secure the pre-trial detention of the accused, draw up indictments in which they describe the crimes supposedly committed by the accused in such a way that they are able, and have the facility, in consultation with the prosecutor, to order the imprisonment of the citizen who had the misfortune to be accused.

The possibility provided by the law for accused persons to be placed in pre-trial detention is perceived by those to whom this power is given as a special “privilege”, which gives them strength, prestige and satisfaction; for that reason they order pre-trial detentions without feeling obliged to justify their decisions, their “warrants”, violating the law and their duties, committing the offence of abuse of power, because (a) they have an obligation to give reasons for pre-trial detention warrants (temporary detention), which remain unreasoned, and (b) they must impose, if this is considered necessary, the so-called “restrictive conditions”, such as the accused person’s obligation to pay a monetary guarantee, to appear at a police station or at the investigating judge’s office at regular intervals, and the prohibition on leaving the country, instead of depriving presumptively innocent accused persons of their liberty.

From time to time protests have been raised and serious reactions have come from lawyers, experts and defenders of human rights against the frequent, unjustified, abusive and arbitrary pre-trial detentions, resulting in successive amendments of the law so as to prevent the judicial arbitrariness manifested by the mass issuance of unreasoned pre-trial detention warrants, which nevertheless have not been satisfactorily curtailed.

For the conceptual distinction between imprisonment (or incarceration), which is imposed by a convicting decision of a court, and the imprisonment imposed by the investigating judge and the prosecutor without a judicial decision, in the context of the so-called pre-trial procedure, that is, the mandatory stage of investigation before the accused is referred for trial before the competent criminal court, in the second case, imprisonment without trial, the deprivation of the accused person’s liberty is described as “temporary detention” and not as “pre-trial detention”, and the prisoner is described as “temporarily detained”. However, describing pre-trial detention as temporary detention does not change reality: the person imprisoned without trial is in substance convicted, since he loses his liberty, and it matters little to him, as he is publicly humiliated and made to suffer, whether he is in pre-trial detention, imprisoned, or merely temporarily detained. The substance remains the same.

Many pre-trial detainees, detained for as long as eighteen months, are acquitted and, in that case, the state is obliged to compensate them for the unjust and demonstrably unjustified deprivation of their liberty.

Articles of the Code of Criminal Procedure provide for compensation for those unjustly placed in pre-trial detention or imprisoned, which may not exceed the limit of twenty-nine euros per day. This limit may be exceeded only in “exceptional cases”, which the law does not define. Usually the daily compensation of those unjustly imprisoned, as awarded by the courts, does not exceed ten euros, because that is the amount at which the value of citizens’ liberty is assessed; while those who ordered and imposed the unjust pre-trial detention, or who unjustly convicted and imprisoned the accused who, in the end, after hardship, public humiliation, diminishment, indescribable trials, mockery and expenses, is acquitted, are not subjected to disciplinary review, nor are they forced to bear the costs of their mistakes. Only judges who issue acquittals or avoid committing injustice through arbitrary pre-trial detentions are subjected to disciplinary review, because they respect their office, their oath and the law.

It should be noted that, in order that those unjustly imprisoned not be compensated, a very short deadline of only ten days has been set for filing an application for compensation, beginning on the day the acquittal is pronounced. The person who has been acquitted, whose innocence and presumption of innocence have been confirmed, as he is relieved of the burden of the charge and hastens to regain calm, necessarily resting for a while, rarely remembers to ask immediately for recognition of his right to compensation. Thus he loses the ten-day deadline and, with it, the possibility of limiting his losses and, above all, his moral harm.

Because of the arbitrariness that characterizes unjustified pre-trial detentions, investigating judges and prosecutors, with brilliant exceptions, not only fail to give reasons for the pre-trial detention warrants they issue arbitrarily, but, worse still, also deprive of liberty close relatives, children and the spouse of the detained accused, knowing that they, relatives, children and spouse, are uninvolved in and innocent of the offences charged, with the purpose of pressuring either the relatives themselves or, indirectly, the accused, so that they will make confessions and statements useful for supporting the accusation, under the unbearable weight of the prosecution of relatives and spouse.

This is an anti-democratic, unlawful and inhuman “practice”, which tarnishes the system of judicial power. For that reason a barrier must be placed against arbitrariness that cannot continue, especially after the example to be avoided of the investigating judge who first placed the wife, then the young daughter and almost the minor son of the accused, against whom he launched direct threats, in pre-trial detention in the “Siemens” case, because one of the company’s senior executives, after receiving time to prepare his defence, left the country. And the investigating judge decided to “take revenge” on the accused by imprisoning his family. Other unjust and unjustified pre-trial detentions had preceded this arbitrariness, and similar and worse ones followed, with the pre-trial detention of spouses and children of accused persons and the dissolution of families, because, according to a recent prosecutorial proposal, which some printed media praised, this is allegedly required by the “public interest”, an indeterminate, abstract and general concept that is not reviewed. According to the same proposal for pre-trial detention, the wife must be detained because certain other “well-known accused persons” did not appear before the investigating judge and hurried to disappear. Consequently, according to the prosecutorial as well as the investigative view, because certain other “well-known” persons, although the law does not distinguish between “well-known” and “unknown” persons because of the constitutional command of equality of citizens before the law, violated the law and left, the wife must be imprisoned because she was judged to be “well-known” and prominent. With the mentality of alleged “collective responsibility”, in this case of the well-known, totalitarian regimes tyrannized peoples; and this judgment does not differ from the “collective responsibility” applied during the triple occupation of our homeland, during the period 1941 – 1944, which must serve not as an example to imitate but as one to avoid, with revulsion. Besides, it is a rule that the responsibility of each accused person is judged independently, that is, what matters is not the conduct of others, but the conduct of the specific person.