What is pretrial detention? It is when a person is placed in jail before a sentence has been issued. It does not mean they are already guilty — it only means the criminal process is still ongoing.
JUSTIFIED pretrial detention
The judge decides whether to impose it on a case-by-case basis. It is applied only if the prosecutor proves that the person:
• May flee
• May threaten witnesses
• May destroy evidence
• Or poses a risk to the victim or to society
In short: “It is not automatic. It must be justified.”
Example: A person accused of fraud who has no fixed address and intends to leave the country.
MANDATORY (officiosa) pretrial detention
It applies only to certain serious offenses, such as:
• Organized crime
• Homicide
• Rape
• Kidnapping
• Exclusive use of military weapons
• Human trafficking
• Femicide, among others
In short: “There is no discussion. The law mandates jail.”
It is automatic by law. The judge is required to impose it even if the person poses no danger.
Important takeaways
1. Pretrial detention is NOT a punishment — it is a precautionary measure.
2. Mandatory detention is the harshest type, because it does not allow the defendant to argue against incarceration.
