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Introduction - Detention

Detention of the accused is meant to limit his/her liberties in order to ensure that he/she appears in a criminal trial, to help findings of fact by preventing spoliation of evidence and to enforce confirmed penalty. It is a system that helps the criminal procedure and enforcement of penalty.

Detention and principle of warrants

In order to detain the accused, a warrant, that has been issued pursuant to due process by a judge upon the prosecutor’s application, must be presented.

If there is considerable reason to believe that the accused is guilty, if the accused does not have a fixed residence or if there is a risk of spoliation of evidence or of taking flight the prosecutor may detain the accused upon issuance of the detention warrant from the judge at the court of competent jurisdiction. The law enforcement officer may request the prosecutor, who in turn applies to the judge of the competent jurisdiction for the issuance of the detention warrant, and then after obtaining the warrant, may detain the accused.

However, in cases that are subject to a penalty of fine, detention or assessment of 500,000 or less, the accused may be arrested only if he has no fixed residence.

Exception to the warrant principle

  • Immediate arrest If there exists considerable reason to believe that the accused is guilty of a crime which is subject to capital punishment, life imprisonment or imprisonment of 3 years or more, if there is risk of flight or spoliation of evidence, or if prompt action is called for, the prosecutor or law enforcement officer may arrest the accused without a warrant.
  • Arrest of offender in the commission of crime The offender who is in the act of committing a crime or has just committed a crime is referred to as a flagrant offender, and flagrant offenders may be arrested not only by the police but by any person, without a warrant. Provided, however, if a citizen has arrested a flagrant offender, the offender must be handed over to the police immediately.
  • Post arrest process If the investigatory authority intends to detain the suspect who has been arrested on immediate capture basis or has been arrested as a flagrant offender, it has to apply for the detention warrant from a judge within 48 hours of the arrest. If a warrant is not applied for or if the warrant is not issued within that time, the suspect must be released immediately.
    Provided, however, the application for detention warrant for an suspect who was arrested on immediate arrest basis must be made without delay. Just because the warrant is issued within 48 hours, it does not automatically mean that the “without delay” requirement is satisfied, however.

Enforcement of detention warrant

  • Law Enforcement Agency The detention warrant is enforced by the law enforcement officer under the direction of the prosecutors. The detention warrant issued against an suspect in a penitentiary or detention center is enforced by penitentiary officer under the direction of the prosecutors.
  • Enforcement procedure In enforcing the detention warrant, the suspect must be informed regarding a summary of the facts of crime, reason for the detention and the right to counsel. The suspect must also be given an opportunity to defend his actions and must be presented with an detention warrant. If a speedy detention is called for and the arrest warrant is not in possession, the detention may be made without the presentation of warrant. However, an arrest warrant must be promptly presented after the detention has been completed.
  • Notice of detention If suspect is detained, without delay in writing the suspect’s lawyer, if he/she has a lawyer, or anyone else designated by the suspect including but not limited to legal agent, spouse, lineal relation or siblings, if the accused does not have a lawyer, shall be notified of the case name, date, time and place of arrest, a summary of facts surrounding crime, the reason for arrest and the right to counsel.

Length of arrest period

  • Investigatory Authority Arrests made by law enforcement officers shall last 10 days or less and no extension is allowed. The length of period during which the prosecutor may arrest the suspect is also 10 days from the date it obtained custody of the suspect from the law enforcement officer. However, if the judge determined that there is sufficient reason to continue investigation, then upon the application of the prosecutors, the period of arrest may be extended once for a period not exceeding 10 days.
  • Court The length of detention by the court is 2 months and the periods of arrest, detention and confinement prior to the filing of complaint are not counted towards the total period of arrest. The first day of arrest is considered one full day without regard to time, and even if the last day is Saturday or a holiday, it is counted towards the period of detention. While the period of arrest is 2 months, if there is a specific need to continue the detention, then it may be extended up to 2 times at each trial level, for periods of 2 months at a time. Provided, however, during appellate trials, if additional deliberation is necessary due to examination of evidence requested by the defendant or the lawyer, or due to submission of documents that further expounds on the reason for appeal, the arrest period may be extended for a third time. Therefore, the possible periods of arrest for trial at the trial level is 6 months, and four months to six months at each of the first appeal and the supreme court appeal, for a total of one year and two months to one year and six months.

Limitation on re-detention

Any person once detained by the prosecutors or law enforcement officers and then released may not be re- detained for the same crime unless there was a discovery of a new important evidence..

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