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9.
The decision to order pretrial detention will be made in an oral hearing
in which all parties participate, including the victim(s), thereby
guaranteeing the principles of audi alteram partem and procedural
immediacy, and the right to a public and rapid proceeding. Under
certain circumstances, this requirement may be satisfied through the
use of appropriate video technology.
10.
The following are among the factors that may be considered when
deciding the question of flight risk: (a) attachment, as determined by
the defendant’s domicile, habitual residence, family home or place of
business or work, and his or her ability to leave the country (or the
state in the case of federal States) or remain hidden, as well as other
factors that would influence the defendant’s attachment; (b) the
defendant’s behavior during those proceedings to the extent that it is
indicative of his or her willingness to undergo criminal prosecution,
and in particular whether he or she was in contempt of court or
concealed information concerning his/her identity or domicile, or
provided a false one; or (c) the type of crime the accused is charged
with and the severity of the foreseen sentence.
11.
In determining whether a suspected offender threatens to obstruct the
inquiry into the facts, consideration may be given to any indicia that
give cause for a serious suspicion that the defendant: (a) will destroy,
alter, conceal, suppress or falsify evidence; (b) will exert pressure on
witnesses or experts to give false testimony or behave in a disloyal or
reticent manner, or (c) induce others to engage in such conduct.
12.
Pretrial detention shall not be ordered for minor criminal offenses,
when there is only a mere suspicion that the suspect is criminally
liable, when other alternative measures are available that can
guarantee that the accused will appear for trial, for reasons of “public
concern” or any other abstract legal concept, or in view of a possible
long-term conviction.
13.
Any provision requiring pretrial detention based on the type of the
crime should be repealed.
14.
Establish supervision mechanisms through which the situation of
persons in pretrial detention is periodically reviewed to ensure that
criminal proceedings move diligently and that any persons in pretrial
detention who are not tried and convicted within a reasonable period
of time are released until the proceedings come to their conclusion.
The responsibility for ensuring that these periodic reviews are done
shall rest with the prosecuting authority in charge of the case or the
competent investigating judicial authority. When pretrial detention is
no longer necessary, it must be lifted immediately.
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