What is Detention?

Detention refers to the confinement of a defendant before they have been formally convicted of a crime. Despite the presumption of innocence—anyone not declared guilty by a court is considered free—courts sometimes need to order detention. This measure aims to prevent the destruction of evidence, flight, or collusion with other defendants and witnesses, ensuring the smooth progression of criminal investigations or trials. It is a coercive measure that restricts personal freedom.

The Definition of Detention Can Be Understood from Several Aspects:

1. Preventing Flight: During the investigation or trial of a criminal case, if there is a risk that the defendant might flee the jurisdiction, detention is an effective means to prevent escape and ensure the defendant's presence throughout the legal proceedings. This is one of the fundamental purposes of detention—to ensure the defendant is always under the judicial system's control during the litigation process.
2. Preserving Evidence: Detention helps prevent the defendant from destroying, forging, or tampering with evidence and from colluding with co-defendants or witnesses. This is crucial for the factual investigation of the case and the fair trial process. Without detention, the defendant might take advantage of their freedom to manipulate evidence in a way that undermines a fair trial.
3. Ensuring Public Safety: For defendants who pose a potential risk of reoffending or present a significant danger to society, detention acts as a preventive measure to protect public safety. This is particularly relevant for those with a history of serious crimes and a high risk of reoffending.

From a legal standpoint, detention is a significant restriction on individual freedom, requiring solid legal grounds and due process. It is not merely about limiting the defendant’s liberty but ensuring the proper conduct of criminal investigations and trials while maintaining societal order and safety. Given its profound impact on personal freedom, detention should be considered a last resort and applied only when less severe alternatives cannot achieve the same effect, adhering to the principle of proportionality.

General Detention vs. Preventive Detention

Detention, as a severe measure restricting the defendant's personal freedom, can be categorized into two types: general detention and preventive detention. These types have different standards and requirements in terms of their application conditions and legal basis, summarized as follows:

What is Detention incommunicado?

Detention incommunicado refers to the prohibition of communication or visits with the outside world during detention. Generally, defendants retain certain rights during detention, including communicating or visiting with family and friends, which is part of safeguarding their basic human rights. However, under specific circumstances, the court may decide to enforce detention incommunicado.

Reasons for Detention incommunicado:

While detained in a detention center, defendants are usually allowed to communicate or receive visits from outsiders. However, the court might order detention incommunicado under the following circumstances:：

1.  Preventing Evidence Tampering: If there is sufficient reason to believe that the defendant might use their external contacts to destroy, forge, or tamper with evidence, the court can decide to enforce detention incommunicado. This measure ensures the integrity and authenticity of criminal case evidence, preventing the defendant from compromising judicial fairness.
2. Preventing Collusion: When there is a possibility that the defendant might collude with other involved parties (such as co-defendants or witnesses) through communication or visits, which could affect the investigation and trial, the court might consider implementing detention incommunicado. This is to prevent the defendant and others from coordinating false testimony, thus misleading the judicial authorities.

What to Do When Detained incommunicado: 

The decision to enforce detention incommunicado rests with the court. Once such a decision is made, the defendant will be restricted from all external communication and visits during detention, with the sole exception of their lawyer. Lawyers retain the right to meet with the defendant during detention, ensuring the defendant’s right to defense and the fairness of judicial procedures.

In this process, lawyers play a crucial role. They not only provide legal advice and defense to the defendant but also act as the sole link between the defendant and the outside world during detention incommunicado. Lawyers can meet with the defendant to understand their situation and convey necessary information to the defendant’s family or carry out essential legal procedures.

Detention incommunicado has profound effects on the defendant. Unable to contact the outside world during this period can impact their psychological state and potentially hinder their legal defense. Therefore, courts must carefully consider whether to enforce detention incommunicado, ensuring that this measure aligns with the principle of proportionality and is applied only when absolutely necessary. If a friend or family member is detained incommunicado, it is advisable to promptly appoint a lawyer to visit them at the detention center. The lawyer can ascertain what supplies the detained person needs and use the meeting to gather relevant facts for subsequent defense in the investigation and trial process.

Reference：Criminal Procedure Law、Detention Law

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