Lawyer on detention - the preventive measure hearing that decides where you spend the next 9 months
Within 48 hours of detention the court answers one question: will the accused be in custody until the case is heard, or at liberty. That decision often affects the outcome of the case more than the verdict itself - an accused in custody signs a plea agreement on worse terms, cannot work with witnesses and loses their job. That is why the defence lawyer's most intensive work falls in exactly these two days.
This page describes what the lawyer does from the moment of detention to the preventive measure hearing and after it: what material they gather, what argument they put against the prosecutor's motion for custody, how bail is calculated, when an appeal is worthwhile and what it all costs. The client's own actions on detention are in a separate guide; here - the lawyer's side.
Updated · Practice area: Criminal defence lawyer
The five preventive measures and what the judge looks at
The prosecutor asks the court to apply a preventive measure and requests custody on the ground that the accused will abscond, destroy evidence, pressure a witness or commit a new offence. The law declares custody a measure of last resort - the court must first consider less severe options: bail, an undertaking not to leave and to behave properly, personal surety, supervision of a serviceman by command. The defence lawyer's task is to present a specific, documented basis for each of these options.
The judge does not look at an abstract "good person" - they assess five measurable factors: a permanent home and family in Georgia, a job or business that would be lost by fleeing, no criminal record, the gravity of the charge and the expected sentence, and the accused's conduct before detention (cooperating with the investigation or hiding). All five must be confirmed on paper in the first hours after detention - by a certificate, an extract, a contract - because at the hearing a word cannot replace a document.
The prosecutor's motion is often a template listing the grounds without specific facts. The defence's first argument rests on exactly that: the court must check each ground for custody factually, and the assumption that "they may abscond" is not confirmed automatically by a foreign passport or the severity of the sentence.
The defence lawyer's work from detention to the hearing - six steps in 48 hours
Getting involved and the first meeting
The lawyer goes to the station or the detention facility with their warrant, meets the detainee in confidence and checks the detention report: time, ground, explanation of rights, seized items. A defect in the report later becomes an argument for excluding evidence and for the unlawfulness of the detention.
Controlling investigative actions
Questioning only in the lawyer's presence; use of the right to silence or a limited statement according to strategy. Objections to the reports on search, seizure and the ordering of expert examinations the same day - challenging them later is harder.
Gathering defence material
Through the family within 24 hours: proof of address and family, a certificate from work and salary, health documents, no criminal record, a property extract to secure bail, character references. Each document answers one of the prosecutor's grounds.
Checking the charges
The decision on charges must be served within 48 hours; the lawyer checks the qualification - charges are often brought under a heavier article than the facts allow, precisely to justify custody. Disputing the qualification is a separate argument at the hearing.
The hearing and the request for an alternative
The defence counters each of the prosecutor's grounds with a document and proposes a specific alternative: bail in money or property, an undertaking not to leave with surrender of the passport, personal surety. A specific, secured alternative is more acceptable to a court than a general request for "release".
Appeal or a request to vary
A custody ruling is appealed to the investigative panel of the Court of Appeals within a short period. If the appeal fails, a motion to vary the preventive measure can be filed at any time on a new circumstance - health, completion of the investigation, a new document.
The preventive measures compared - what each requires of you
Eight arguments against custody that actually work in court
- The accused knew of the investigation before detention and appeared voluntarily - the assumption of absconding is refuted by fact.
- A permanent home, family and dependants in Georgia - by documents, not words.
- A job or business that cannot realistically be abandoned - a certificate, a contract, the number of employees.
- The evidence has already been seized and the witnesses questioned - the ground of "destroying evidence" has fallen away.
- A state of health that cannot be managed in a detention facility - by medical report.
- The qualification of the charge is disputed, and the lighter article does not allow custody at all.
- No criminal record, and reconciliation with the victim or compensation of the damage already begun.
- A specific, already secured alternative - the bail sum on the account, the guarantor's letter in hand.
Three cases and how the defence tactics change
A less serious charge, first offence
Tactics: an undertaking not to leave or modest bail at the hearing, with a full set of documents. Custody is the exception here, and the template nature of the prosecutor's motion is the main argument. The result is often release at the hearing itself.
A serious charge, disputed qualification
Tactics: the disputed qualification and insufficiency of facts, bail in property, health and family. If custody is imposed anyway - an appeal the same week and a request to vary every 2 months on a new circumstance.
The accused is a foreigner
Tactics: the assumption of absconding is not confirmed automatically by a foreign passport - residence, property, business and family in Georgia count in the same way. Surrender of the passport and increased bail are a real alternative. The consulate is notified, the interpreter is free.
How long and how much
- Charges and the hearing
- 48 hours from detention for both. Expiry means release - which is why the lawyer checks the time in the detention report so strictly.
- Appealing the ruling
- A short period from service, in days; the appeal goes to the investigative panel of the Court of Appeals and is considered quickly, even without a hearing.
- Review of custody
- Every 2 months the court checks the necessity; the maximum period is 9 months. A motion to vary at any time on a new circumstance.
- Fees
- The stage from detention to the preventive measure hearing is usually a fixed sum - including the night call, visits to the facility and the hearing. It is separate from the fee for running the whole case and is agreed in advance within the fee shown on the profile. The bail sum is not a fee and is returned at the end of the case.
Questions about detention and preventive measures
We do not have the money for bail. Is custody inevitable?
No - bail can be secured with real estate, and besides bail there are the undertaking not to leave and personal surety, which require no money. At the hearing the lawyer asks for the alternative you can actually secure, and for a reduction of the bail amount on documents of your financial position.
Custody was imposed. What are the chances of changing it on appeal?
The chances depend on what was missing at the hearing: if the documents did not arrive in time or the prosecutor's grounds were not examined, an appeal is often successful. If the hearing was thorough, a motion to vary on a new circumstance a few weeks later is more realistic - for example after the main investigative actions are complete.
I am under an undertaking not to leave and need to travel abroad for work.
It is possible with the written permission of the investigator or prosecutor - the lawyer files a motion with the purpose, the dates and a guarantee of return. Leaving without permission is a breach of the undertaking and a ground for replacing it with custody.
48 hours have passed since detention and no hearing has been held.
The person must be released at once - this is an automatic rule, without a court ruling. The lawyer applies in writing to the facility's administration and the prosecutor; the delay is unlawful detention and a ground for compensation. After that the prosecutor can still request a preventive measure, but now against a free person.
When is bail returned, and can it not be returned?
At the end of the case - by verdict, discontinuance or plea agreement - if the accused did not breach the conditions. Bail passes to the treasury only on absconding, refusal to appear or another breach of conditions, by a court ruling. Bail is not used automatically to cover a sentence or a fine.
Criminal defence lawyers who answer detention calls at night
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