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The fundamental purpose of remand regulations, whether custodial or noncustodial, is to ensure the defendant's presence at trial.
Legitimate motives include preventing flight or absconding, tampering with evidence, interfering with witnesses, or otherwise hindering the administration of justice.
The European Convention on Human Rights (ECHR) protects everyone's right to liberty by limiting the reasons for detention: "[…]No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law."
The normative justification for pretrial detention derives specifically from Article 5 (1) lit c of the European Convention on Human Rights, which permits "the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so."
Article 5(3) of the Convention includes a number of critical safeguards to ensure that deprivation of liberty is an exception to the rule of liberty and that judicial oversight is in place.
The European Court of Human Rights has ruled that pretrial detention must be a last option.
The International Covenant on Civil and Political Rights (ICCPR) safeguards the liberty of every individual against arbitrary imprisonment, but does not establish lawful pre-trial detention grounds.
Article 9 (3) of the ICCPR states that "it shall not be general the rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should the occasion arise for execution of the judgment."
Regarding alternatives to pretrial imprisonment, these clauses have three effects: a presumption of liberty, the right to bail, and the right to have bail evaluated in every case.
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