E/CN.4/2002/77/Add.2
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non-renewable time limit on police custody (art. 25 of the Code of Criminal Procedure), anyone
in police custody must be brought before a judge before this time limit expires (art. 79, para. 1).
It is the judge who decides whether a person in custody should continue to be detained or be
freed on bail or otherwise. Detainees may be remanded for up to seven days, but the court can
extend this period - if the inquiry so warrants or in the interests of justice - right up to the trial
(art. 79, para. 2). The decision to continue pre-trial detention may be challenged in the court
which handed it down (art. 79, para. 3), and this remedy may be exercised monthly. In the case
of crimes against State security, provision is made for indefinite detention - as we have
emphasized - under article 79, paragraph 3, of the Criminal Code, which states: “In crimes
prejudicing State security, whether from inside or outside the country, as provided in the
Criminal Code detention for an indefinite period shall be authorized.”
58.
During its visits to police stations and the detention facilities of the Criminal
Investigation Department, the delegation ascertained that the time limit for police custody was
generally adhered to, and most of the persons questioned stated that they had been brought
before a judge within the time frame prescribed by law.
59.
However, some problems have been noted in connection with the extension of pre-trial
detention. Nearly everybody questioned stated that every seven days they were taken before the
court and their pre-trial detention was systematically extended unless they posted bail. In
criminal cases, it seems that the judge sometimes extends pre-trial detention without setting eyes
on the detainees, who do not even leave the courthouse holding cells to be brought before the
court.
60.
Because confessions to the police are not admissible as evidence (art. 128, para. 3), they
are corroborated under a procedure whereby the police bring before the investigating judge
(termed the “confessions judge” by detainees) accused persons who have confessed to the crime
with which they have been charged so that they can repeat their confessions. This procedure,
which permits the police to use confessions in court as evidence for the prosecution, is
pernicious insofar as a lawyer is not always present at this stage of proceedings and the accused
is in the hands of the police.
5.
The Bar (and legal aid)
61.
The legal profession is currently regulated by Legislative Decree No. 26 of 1980. The
Working Group reports that this instrument does not conform to the Basic Principles on the Role
of Lawyers adopted by the United Nations in 1990, especially principles 24 and 25 on
professional associations of lawyers and principles 26-29 on disciplinary proceedings. The Bar
does not exist as a professional organization. Candidates who satisfy the conditions established
by the Legislative Decree must apply to be included on the roll of pupil barristers kept by the
Minister of Justice, who may accept or refuse their applications on the advice of a commission
made up of the chief justice of the High Court (who chairs the commission), the Minister of
Justice, a High Court judge and a lawyer appointed by the Minister of Justice. This same
commission is empowered to evaluate the ability of the pupil barrister and the Minister of Justice
orders his registration on the Bar roll if the period of pupillage is validated.
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