The Forty-Seventh Hour
At 18:10 on Monday, police detain D. in a warehouse theft. At 17:40 on Wednesday, the investigator brings the prosecutor a draft petition for pre-trial detention, saying new evidence links D. to a larger group and that D.'s brother, a police officer in another district, might warn others. The 48-hour detention period expires at 18:10. The prosecutor has not yet seen the case file; the court hearing is not scheduled. Defense counsel is present and argues that the prosecutor cannot simply approve continued detention and that the detention has already become unlawful because no court order exists. The investigator asks the prosecutor to 'extend by 72 hours' by a written approval. The prosecutor must decide before 18:10 and document the decision.
1. Can the prosecutor extend detention by written approval?
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No. A prosecutor's written approval cannot replace a court order for pre-trial detention. The prosecutor's role is to verify the lawfulness of the detention and, if the grounds exist, to submit the petition to the court before the 48-hour period expires. The prosecutor may not grant a '72-hour extension' by office letter. If the court cannot hear the petition before expiry, the prosecutor must either release D. or use another lawful measure, unless the law expressly permits a short extension by a court. The decision must be based on the file, not the investigator's summary. A written order should record the time of review, the grounds, the evidence, and the outcome. If detention is already unlawful, the prosecutor must order release immediately and document the violation.
2. What factors should the prosecutor assess in deciding whether to support pre-trial detention?
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The prosecutor should assess the evidence linking D. to the theft; the risk of flight; the risk of interfering with witnesses, including the brother; the seriousness of the offence; D.'s health, family, employment, and prior record; and whether a less restrictive measure such as bail, house arrest, or a travel ban would suffice. The brother's police position is a risk factor only if there is concrete evidence of possible warning or destruction of evidence, not because of family status alone. The prosecutor should also check whether the 48-hour period was calculated correctly and whether D. had access to counsel. The decision must be proportional and reasoned.
3. What procedural acts should the prosecutor issue before 18:10?
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Proper acts are: (a) a written release order if grounds are absent or the time limit cannot be met; (b) a petition to the court for pre-trial detention, filed before expiry, with the case file and evidence; (c) if the investigator's request is defective, a written refusal explaining what must be corrected. The prosecutor should not sign a retroactive extension. The file should note the exact time of the decision. The defense should receive notice of the filing and the court should review it in adversarial proceedings.