Mozambique: New time limits for pre-trial detention – Carta

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Mozambique: New time limits for pre-trial detention – Carta

3:39 CAT | 14 Dec 2020

One year after its approval, the Assembly of the Republic has once again changed the Penal Procedure Code (CPP). The idea of the change is to adjust the instrument to the current dynamics and, for that, it carried out reforms in the form of the execution of the pre-trial detention institute. Here, parliamentarians changed the maximum time duration of this exceptional measure.

This morning (Monday, December 14), parliament was to meet again in plenary session to definitively approve the instrument, where specific changes were also made regarding the appeals of the decisions of the district courts, as well as the testimonial evidence for the search for the material truth.

In essence, the diploma establishes two markers for the extinction of pre-trial detention. The instrument points out that pre-trial detention will be extinguished when “four months have passed after the notification of the indictment, without – the preliminary hearing having taken place – a definitive indictment having been handed [down]”. Pre-trial detention will also be extinguished if four months have passed since its inception, without the indictment being brought.

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However, the aforementioned time limits may be extended up to six and 10 months, in the case of terrorism, violent or organised crime, or when proceeding with a crime punishable by imprisonment for a maximum of eight years.

In fact, the four months can still be extended to 12 and 16 months when decreed in the case of terrorism, violent or organised crime and “proves to be of exceptional complexity, in relation to the quality of the offended or due to the highly organised nature of the crime”.

The changes do not stop there. In situations in which the defendant has been sentenced to imprisonment, and if the case is under appeal, pre-trial detention will be extinguished if it has the duration of the sentence handed in the first instance.

Pre-trial detention may also be extinguished, by a Judge-Rapporteur, when – being the case on appeal – it [detention] has lasted for a period corresponding to half the fixed sentence, provided that the conditions of parole are verified.

The legislature also determined that “when counting the maximum duration of pre-trial detention, the periods in which the defendant has been subject to the obligation to remain in housing are included”.

In the light of the Criminal Procedure Code, the judge can, among others, impose pre-trial detention when there is strong evidence of a criminal offense punishable by a prison sentence of more than two years and even if it is a person who has entered or remains in national territory unlawfully, or against whom extradition or expulsion proceedings are ongoing.

In general, coercive measures apply when there is “leak or danger of escape; danger of disturbing the course of the investigation or of the preliminary hearing of the case and, in particular, danger for the acquisition, preservation or veracity of the evidence; or danger, due to the nature and circumstances of the crime or the personality of the accused, disturbance of public order and tranquillity or continuation of activity”.

Before this punctual change, in what regards to the maximum duration of pre-trial detention, pre-trial detention would be extinguished in situations when, among others, “eight months have passed since its beginning without – the preliminary hearing having taken place – a definitive indictment having been handed; 14 months, with no conviction at first instance; and 18 months, without a final conviction”.

Previous to this change, the aforementioned time limits could be extended up to six, 10, 18 and 24 months in the case of terrorism, violent or highly organised crime, or when proceeding with a crime punishable by a maximum prison sentence of more than eight years.

Appeals

The issue of appeals is another point at which parliamentarians decided to implement changes. Decisions handed down by the provincial courts, this in the first instance, are subject to appeal to the higher court of appeal.

Regarding powers of consignment, the provincial courts of law and the higher courts of appeal know in fact and in law.

Testimonial evidence

In essence, deputies reformulated paragraph 1 of article 159. The witness is, according to the amendment, “asked about facts of which he/she has direct knowledge and which are the subject of evidence, as well as the way in which he/she knew what is testified and if the witness says he/she knew what he/she saw, the witness will be asked about the what time and place he/she saw, if there were other people there who also saw and who they were or if he/she says that he/she heard about it, the witness will be asked who in what time and place he/she heard, and if there were other people who heard it too and who they were, writing down all the answers that interest the process in discovering the material truth”.

Before the change, the witness was asked about facts of which he/she had direct knowledge and which were the subject of the evidence.

Source: Carta de Moçambique