It depends on the nature of the case and personal interests, but with some regularity, courts release suspects under suspensive conditions. This is as it should be, since a suspect can be presumed innocent until proven guilty.
Nevertheless, the curious circumstance regularly arises that courts lift the suspension in the sentence if a longer prison sentence is imposed than the time spent on remand. That is, the convicted person is again detained even though he has complied with the conditions of suspension. Regardless of whether or not the convicted person would want to appeal.
This is curious because a verdict in itself does not mean that the accused can no longer be held innocent. After all, the case and thus the proven facts are not yet irrevocable. The question that arises is whether a verdict in itself is grounds to have the suspension of pre-trial detention terminated.
In early March, an Advocate General (advisor to the Supreme Court) raised this issue by filing a claim for cassation in the interests of the law. By filing such an application, a decision can be obtained from the Supreme Court on a question of law that needs to be answered in the interests of legal unity or legal development and that cannot be submitted to the Supreme Court through an ordinary cassation appeal, or cannot be submitted in time.
The Advocate General has asked the Supreme Court to develop a review framework with regard to the following questions: 1) When should the court proceed to suspend pre-trial detention, 2) when can this suspension be lifted again, 3) To what extent is the judge obliged to give reasons for this judgement.
With regard to the first question, the cassation claim goes back to the legislative history. It follows that pre-trial detention is 'as little and as short as possible (should) should be applied and where possible, less intrusive alternatives should suffice'. These requirements of proportionality and subsidiarity are still regularly lost sight of by the courts. In principle, pre-trial detention should be suspended if the aims of pre-trial detention (e.g. to prevent social unrest, risk of flight or repetition) can be achieved by less drastic means than deprivation of liberty.
On the second question, the A-G concludes that a guilty verdict should not in itself give rise to the lifting of pre-trial detention. At most, a guilty verdict would give rise to a re-evaluation between the interests of the accused and the interests of the criminal justice system, such as prevention of re-offending, etc. '
Moreover, the decision to lift pre-trial detention should have been preceded by a careful weighing between the interests of criminal procedure and the individual interests of the accused. This means that a suspect should be heard before the court would decide to lift the suspension. The accused can then express his views on, for example, the consequences that the continuation or non-continuation of the suspension would have for him.
On the third question, the A-G argues that a court should give reasons why there would be concrete circumstances that would justify actual deprivation of liberty. This could be done in a severed section of the judgment. A mere reference to the conviction is insufficient.
It is now up to the Supreme Court to rule. If the Supreme Court follows the A-G, courts are expected to be less likely to lift a suspension, so that the suspended defendant can in principle await his appeal in freedom even in the context of a suspension.
Unsurprisingly, I can only agree with this. When it comes to people's freedom, decisions should never be taken on autopilot.
Mr. D.M. Penn