Over the last few weeks, quite an interesting dialogue can be observed about the institute of custody in on-going criminal investigations, governed by Code of Criminal Procedure. Custody is a way of ensuring that the indicted person does not influence witnesses (known as ‘collusion custody’), or does not escape (known as ‘escape custody’), or does not continue with criminal activity or does not accomplish a criminal act (known as ‘preventive custody’). It is, therefore, only a temporary deprivation of liberty of the indicted person. The public often confuses it with an imprisonment sentence – a conviction of an indicted person. According to some lawyers, custody has recently begun serving the same purpose as an imprisonment sentence. Some of them find custody strict, sometimes ordered disproportionately and unreasonably.
In this context, we can mention an article available on the Legal Letters website written by a Constitutional Court judge who heard a constitutional complaint by a person prosecuted for economic crimes. This complaint concerned his release from custody – the person was in custody for almost two years at the time and argued that the courts’ decisions on his custody were inconclusive.
The Constitutional Court dismissed the complaint but one of the judges did not share the majority’s vote and provided his dissenting opinion: “(...) the burden of proof must be strengthened, suspicions verified, and the custody decision cannot be automatically extended without further prolongation. It is also necessary to examine over time the possibility of replacing the grounds of custody by less stringent means (...) Somewhere beyond the horizon in this regard, I see even the institute’s unacceptable application ‘in doubt in favor of detention’.”
As we have already mentioned, there are many legal professionals who are more and more critical when talking about custody. As an example, we can quote an opinion of the President of the Slovak Bar Association. On 27 January 2021, he sent a letter to the Ministry of Justice, proposing to amend the Code of Criminal Procedure and the provisions regarding custody. He also wrote that custody is increasingly starting to resemble a means of punishment, not taking into account the constitutional guarantee of the presumption of innocence.
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