trial"
46. From the date the prosecutor forwards the case to the trial court, the defendant's detention is "before the court" (or "during the trial").
47. Before 14 March 2001 the old CCrP set no time-limit for detention "during the trial". On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention "during the trial" could not normally exceed six months from the date the court received the file. However, if there was evidence to show that the defendant's release might impede a thorough, complete and objective examination of the case, a court could - of its own motion or on at the request of a prosecutor - extend the detention by no longer than three months. These provisions did not apply to defendants charged with a particularly serious criminal offence.
48. The new CCrP establishes that the term of detention "during the trial" is calculated from the date the court receives the file to the date the judgment is given. The period of detention "during the trial" may not normally exceed six months, but if the case concerns serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3).
E. Proceedings to examine the lawfulness of detention
1. During detention "pending the investigation"
49. Under the old CCrP, the detainee or his or her counsel or representative could challenge a detention order issued by a prosecutor, and any subsequent extension order, before a court. The judge was required to review the lawfulness of and justification for a detention or extension order no later than three days after receipt of the relevant papers. The review had to be conducted in camera in the presence of a prosecutor and the detainee's counsel or representative. The detainee had to be summoned and a review in his absence was only permissible in exceptional circumstances if the detainee waived his right to be present of his own free will. The judge could either dismiss the challenge or revoke the pre-trial detention and order the detainee's release (Article 220-1).
50. An appeal to a higher court lay against the judge's decision. It had to be examined within the same time-limit as appeals against a judgment on the merits (Article 331 in fine).
51. Under the new CCrP, an appeal may be lodged with a higher court within three days of a judicial decision ordering or extending detention on remand. The appeal court must decide the appeal within three days of its receipt (Article 108 § 10).
2. During the trial
52. Upon receipt of the case file, the judge must determine, in particular, whether the defendant should remain in custody or be released pending trial (Articles 222 § 5 and 230 of the old CCrP, Articles 228 (3) and 231 § 2 (6) of the new CCrP) and rule on any application by the defendant for release (Article 223 of the old CCrP). If the application is refused, a fresh application can be made once the trial has commenced (Article 223 of the old CCrP).
53. At any time during the trial the court may order, vary or revoke any preventive measure, including detention (Article 260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such decision must be given in the deliberations room and be signed by all the judges of the bench (Article 261 of the old CCrP, Article 256 of the new CCrP).
54. An appeal against such a decision lies to the higher court. It must be lodged within ten days and examined within the same time-limit as an appeal against a judgment on the merits (Article 331 of the old CCrP, Article 255 § 4 of the new CCrP).
F. Time-limits for trial
55. Under the old CCrP, within fourteen days of receipt of the case file (if the defendant was in custody), the judge was required eit
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