Have you been arrested on suspicion of a criminal offense? Then the police will usually transfer you to the police station to investigate the circumstances under which the offense was committed and what your role as suspect was. The police may detain you for up to nine hours to achieve this goal. The time between midnight and nine o’clock in the morning does not count. During this time, you are in the first stage of the pre-trial detention.
Custody is the second phase of the pre-trial detention. It is possible that nine hours is not enough, and the police need more time for the investigation. Does the public prosecutor decide that you (as a suspect) should stay longer at the police station for further investigation? Then the public prosecutor will order the insurance. However, an order for insurance cannot simply be issued by the public prosecutor. This is because a number of conditions must be met. For example, there should be the following situations:
- the police are afraid of a risk of escape;
- the police want to confront witnesses or prevent you from influencing witnesses;
- the police want to prevent you from interfering with the investigation.
In addition, a warrant may only be issued if you are suspected of a criminal offense for which pre-trial detention is permitted. As a general rule, pre-trial detention is possible in the case of criminal offenses punishable by imprisonment of four years or more. An example of a criminal offense for which pre-trial detention is permitted is theft, fraud or a drug offense.
If an order for insurance is issued by the public prosecutor, the police can detain you with this order, which includes the criminal offense of which you are suspected, for a total of three days, including the night hours, at the police station. In addition, this three-day period may be extended once by an additional three days in an emergency. In the context of this extension, the investigation interest must be weighed against your personal interest as a suspect. The investigation interest includes, for example, fear of a flight hazard, further questioning or preventing you from hindering the investigation. Personal interest may include, for example, care of a partner or child, job preservation or circumstances such as funeral or wedding. In total, therefore, the insurance may last a maximum of 6 days.
You cannot object or appeal against the custody or an extension thereof. However, as a suspect you must be brought before a judge and you can submit your complaint to the examining magistrate about any irregularities in the arrest or custody. It is wise to consult a criminal lawyer before doing this. After all, if you are in custody, you are entitled to assistance from a lawyer. Do you appreciate that? Then you can indicate that you want to use your own lawyer. The police then approach him or her. Otherwise you will receive assistance from the duty picket attorney. Your lawyer can then check whether there are any irregularities during arrest or under insurance and whether provisional detention was permitted in your situation.
In addition, a lawyer can point out your rights and obligations during the pre-trial detention. After all, you will be heard during both the first and second stages of the pre-trial detention. It is usual for the police to start with a number of questions about your personal situation. In this context, the police may ask you to provide your telephone number and your social media. Please note: any answers you give to these “social” questions from the police can be used against you in the investigation. The police will then ask you about the criminal offenses they believe you may be involved in. It is important that you know that you, as a suspect, have the right to remain silent and that you can also use it. It may be sensible to use of the right to remain silent, because you do not yet know what evidence the police have against you during the insurance policy. Although prior to these “business” questions, the police are required to notify you that you are not required to answer the questions, this does not always happen. In addition, the lawyer can inform you about the possible consequences of using the right to remain silent. After all, using the right to remain silent is not without risks. You can also find more information about this in our blog: The right to remain silent in criminal matters.
If the term of the (extended) custody has expired, the following options are available. First of all, the public prosecutor may feel that you no longer need to be detained for the sake of the investigation. In that case, the public prosecutor will order you to be released. It may also be the case that the public prosecutor thinks that the investigation has now progressed far enough to be able to take a final decision on the further course of events. If the public prosecutor decides that you will be detained longer, you will be brought before the judge. The judge will then demand your detention. The judge will also determine whether you as a suspect should be taken into custody. If so, you are also in the next longer phase of the pre-trial detention.
At Law & More, we understand that both arrest and custody are a major event and can have far-reaching consequences for you. It is therefore important that you are well informed about the course of events regarding these steps in the criminal process and the rights that you have during the period you are in custody. Law & More lawyers are experts in the field of criminal law and are happy to assist you during pretrial detention. If you have any other questions regarding custody, please contact the lawyers of Law & More.