The measure of preventive detention in the context of the COVID-19 pandemic

Current framework

The pandemic of the COVID-19 outbreak worldwide has changed the entire ecosystem of the society and severely affected the professional activity and personal life of each person. All public authorities have prioritized public health insurance, assuming the inherent negative effects on the economy, justice or other areas of social life.

This context has made the freedom of the persons subject to the measure of preventive detention acquire new values. Incarcerated people are some of the most vulnerable to infectious diseases, due to limited access to health and sanitation systems, unsanitary conditions and overcrowding in places of detention, aspects that make social distancing and physical isolation impossible. One of the most important public health measures to fight against COVID-19 is to restrict physical contact and proximity. But the very nature of the measure of preventive detention makes this practically impossible.

The measure of preventive detention is the most intrusive measure of deprivation of liberty over the exercise of the person’s right to liberty[1]. This measure par excellence is exceptional and can only be ordered when it is the only way to achieve the purpose for which a certain preventive measure is taken.

For the time being, the only way to maintain public health and safety and protect the right to life is to reduce the number of people in detention facilities. If the persons pre-trial arrested make up a large percentage of the prison population, reducing the use of preventive detention would protect the health not only of detainees but also of many professionals who come into contact with detainees (including system staff, detention centers and lawyers) and the families and communities to which both staff and prisoners in the penitentiary return.

However, there are recent cases in which several people have been detained and the measure of preventive detention has been proposed, including as a result of corruption offences (on 15 April 2020 the National Anticorruption Directorate announced the detention and proposal for preventive detention of a school principal from Bucharest, a representative of a company and a businessman)[2]. There are still many people who were detained before the crisis began and whose release should be considered.

Therefore, we believe that during this period, when the courts rule on the taking or revocation of the measure of preventive detention, they should take into account the following considerations:

• Health protection measures against infection recommended by health authorities, including regular hand washing, social distancing and regular cleaning of clothes, are addressed to the general population and impossible to implement effectively in prisons, where contact between detainees and between detainees and prison staff cannot be avoided.
• The recently published World Health Organization (WHO) Guide emphasizes that persons deprived of their liberty are more vulnerable to COVID-19 infection than the rest of the population, due to the precarious conditions in which they live together for long periods of time: “physical proximity in detention can act as a source of infection, amplification and spread of infectious diseases in prisons and later outside them”[3]. As such, the World Health Organization recommends that greater attention should be paid to the possibility of recourse to non-custodial measures at all stages of the administration of criminal justice, including the trial and sentencing phase, as well as the post-conviction stages.
• The administration of detention centers does not have all the necessary means to prevent the spread of the virus in prison. Given the current health crisis, the detention of a person poses a risk to his or her life, as well as to the lives of other detainees and prison staff.
• Detention is justified in a particular case only if the concrete evidence demonstrates a genuine requirement of public interest that prevails, despite the presumption of innocence, over the rule of respect for individual liberty established in art. 5 of the European Convention on Human Rights[4], and the reasons for refusal of release must not be general and abstract.
• The courts must consider alternative measures to preventive detention as long as the accused provides guarantees regarding his/her presentation at trial. In certain cases, the violation of art. 5 para. 3 of the Convention, as a result of the fact that the national courts did not show in the motivation of the decisions by which they extended the measure of pre-trial detention, which is, in fact, the danger to public order, limiting themselves to reproducing the text of the law the arguments presented by the defendant regarding his personal profile and family situation, not taking into account, at any time, the possibility of adopting an alternative measure[5].
• The Committee of Ministers of the Council of Europe published on 27 September 2006 a recommendation to the Member States on the conditions for pre-trial detention, including the following suggestion: in individual cases, pre-trial detention will be used only when strictly necessary and as a last solution; it will not be used for punitive reasons. And in order to avoid the improper use of pre-trial detention, the court must have at its disposal the widest possible range of alternative, less restrictive measures related to the behaviour of a suspect.
• The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) noted that the spread of contagious diseases, and in particular tuberculosis, hepatitis and HIV / AIDS, has become a major problem of public health in a number of European countries. Although it affects the general population, these diseases have emerged as a dramatic problem in some prison systems. The material conditions in which some people are detained have often proved to be such that they can only promote the spread of these diseases[6].
• Providing medical care to people in prisons and other places of detention is the responsibility of the state. Placing a person in detention means placing the life and health of a person under the responsibility of the state. If a person is in good health when detained and is no longer in good health when released, it is for the State to provide explanations, in the absence of a violation of Article 3 ECHR. A 2019 UNO Human Rights Council (HRC) report points out that even when people are deprived of their liberty, states take responsibility for protecting the lives and bodily integrity of these people[7].

Conclusion

Therefore, when assessing the need for a pre-trial detention measure, the court must take into account the requirement of public interest to take all possible measures to avoid the spread of this serious and unprecedented epidemic. The court must consider as well the current exceptional circumstances, which undergo that the detention of the suspect will present a serious health risk.

Although during this period, the National Anti-corruption Directorate has intensified its activity, we consider that the provision of pre-trial measures should be the exception, especially in criminal cases involving acts of corruption, the court will decide whether the measure reaches its purpose, taking into account all the above considerations.

Notes:

[1] Please see Gh. Mateuț, Procedură Penală Partea generală, Editura Universul Juridic, Bucharest, 2019, p. 818

[2] Please see https://www.pna.ro/comunicate.xhtml.

[3] Please see Preparedness, prevention and control of COVID-19 in prisons and other places of detention, Interim guidance, World Health Organisation, 15 March 2020, available here

[4] Case Begu c. Romania

[5] Case Tarău c. Romania

[6] Please see https://rm.coe.int/1680696a75

[7] Available here