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Pre-Trial Detention Addressing Risk Factors to Prevent Torture and Ill-Treatment

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Detention Monitoring Tool Second edition FACTSHEET Pre-trial detention Addressing risk factors to prevent torture and ill-treatment ‘Long periods of pre-trial custody contribute to overcrowding in prisons, exacerbating the existing problems as regards conditions and relations between the detainees and staff; they also add to the burden on the courts. From the standpoint of preventing ill-treatment, this raises serious concerns for a system already showing signs of stress.’ (UN Subcommittee on Prevention of Torture)1 1. Definition and context 2. What are the main standards? Remand prisoners are detained during criminal Because of its severe and often irreversible negative investigations and pending trial. Pre-trial detention is effects, international law requires that pre-trial detention not a sanction, but a measure to safeguard a criminal should be the exception rather than the rule. procedure. Pre-trial detention is only legitimate where there is a At any one time, an estimated 3.2 million people are reasonable suspicion of the person having committed behind bars awaiting trial, accounting for 30 per cent of the offence, and where detention is necessary and the total prison population worldwide. In some countries, proportionate to prevent them from absconding, pre-trial detainees reportedly constitute the majority of committing another offence, or interfering with the course the prison population, and in some settings even over of justice during pending procedures. This means that 90 per cent of detainees.2 They are legally presumed pre-trial detention is not legitimate where these objectives innocent until proven guilty but may be held in conditions can be achieved through other, less intrusive measures. that are worse than those for convicted prisoners and Alternative measures include bail, seizure of travel sometimes for years on end. documents, the condition to appear before the court as and when required and/or not to interfere with witnesses, Pre-trial detention undermines the chance of a fair trial periodic reporting to police or other authorities, electronic and the presumption of innocence. It increases the risk monitoring, or curfews. of a confession or statement being coerced by torture or ill-treatment and ‘lessens a suspect’s possibilities of Both the UN Standard Minimum Rules for Non-custodial defence, particularly when the person is poor and cannot Measures (the ‘Tokyo Rules’) and the UN Rules for the rely on a defence counsel or support to obtain evidence Treatment of Women Prisoners and Non-Custodial in his favour’.3 Measures for Women Offenders (the ‘Bangkok Rules’) encourage criminal justice systems to provide a Alongside the general risk of violence from guards wide range of non-custodial measures to avoid the and fellow prisoners, high rates of pre-trial detention unnecessary use of imprisonment. However, the absence also contribute to widespread prison overcrowding, of alternatives and shortcomings in their implementation exacerbating poor prison conditions and heightening the have been reported by international5 and regional6 risk of torture and ill-treatment.4 1. UN Subcommittee on Prevention of Torture (SPT), Report on Benin, 11 March 2011, CAT/OP/BEN/1, para.158. 2. Report of the United Nations High Commissioner for Human Rights, Human rights implications of overincarceration and overcrowding, 10 August 2015, A/HRC/30/19, with reference to CAT/C/TGO/CO/2, para. 12, www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/OSJI.pdf and A/HRC/25/71, para. 33. 3. UN Subcommittee on Prevention of Torture (SPT), Report on Paraguay, 7 June 2010, CAT/OP/PRY/1, para.64. 4. Report of the United Nations High Commissioner for Human Rights, Human rights implications of overincarceration and overcrowding, 10 August 2015, A/HRC/30/19. 5. See UN Subcommittee on Torture, Report on Brazil, 5 July 2012, CAT/OP/BRA/1, para. 96; UN Human Rights Committee, Concluding observations on the initial report of Angola, 29 April 2013, CCPR/C/AGO/CO/1, para. 19; Report of the UN Special Rapporteur on torture, Mission to Ghana, 5 March 2014, A/HRC/25/60/Add.1, para. 84; and UN Committee against Torture, Consideration of reports submitted by States parties under article 19 of the Convention, 20 January 2011, CAT/C/KHM/CO/2, para. 19. 6. See European Committee for the Prevention of Torture, Visit to Slovak Republic 24 September to 3 October 2013, 25 November 2014, CPT/Inf (2014) 29, para. 33. Penal Reform International | Pre-trial detention: Addressing risk factors to prevent torture and ill-treatment | 1 FACTSHEET bodies, and identified as a significant contributor to 3. Types and situations of risk overincarceration and overcrowding.7 A range of standards linked to arrest and pre-trial 3.1. Insufficient safeguards during arrest detention are safeguards in their own right, while at the The moment of arrest is a particularly dangerous same time protecting arrestees and remand prisoners situation in the context of torture and ill-treatment as from torture and other ill-treatment. These include: law enforcement officials may coerce a statement or protection against arbitrary arrest; prompt information confession in order to justify the arrest, before the about the reasons for arrest and detention; prompt arrestee has had a chance to seek legal representation. registration of the arrest including precise information about the reasons; identity of the law enforcement Most occurrences of torture take place during police officials and the place of detention; prompt access to a detention prior to a detainee’s appearance before a judge; habeas corpus; trial without delay; presumption judge. In many jurisdictions, this risk is exacerbated by of innocence; separation of pre-trial detainees from the long periods for which an arrestee can be held at a convicted prisoners; regular review of the legality of pre- police station without being brought before a judge, and trial detention; and access to the outside world, including by provisions preventing access to a lawyer during the access to independent doctors and family visits. first day(s) after arrest. Main references • International Covenant on Civil and Political Rights Kazakhstan: Moment of arrest (1966), Articles 9 and 14 In March 2012, the Constitutional Council of • Body of Principles for the Protection of All Persons Kazakhstan had to rule on the interpretation under Any Form of Detention or Imprisonment (1988) of Article 16 (2) of the Constitution, according • UN Principles and Guidelines on Access to Legal Aid to which a person may only be detained for a in Criminal Justice Systems (2012) period of 72 hours before being brought before a judge. There had been differing opinions • UN Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules) (1990) on what triggers the start of this time period, with the prevailing interpretation being that Revised UN Standard Minimum Rules for the • it should start from the arrival of the suspect Treatment of Prisoners (1955) – Section C – Prisoners under arrest or awaiting trial, Rules 111-1208 in a detention centre or the registration of the detainee. However, such an interpretation • UN Basic Principles on the Role of Lawyers (1990) would mean that authorities could determine • UN Rules for the Treatment of Women Prisoners and – and manipulate – access to safeguards, Non-custodial Measures for Women Offenders (The by delaying the transfer or registration of Bangkok Rules) (2010), Rules 57 et sqq the arrestee and thereby undermining their • UN International Convention for the Protection protection. In part based on a submission of All Persons from Enforced Disappearance (for by Penal Reform International Central Asia, registration/ documentation) (2007) the Constitutional Council established10 that • European Convention on Human Rights, Articles 5 and 6 ‘arrest’ refers to the moment when a person is 11 • American Convention on Human Rights, Articles 7 and 8 apprehended. • Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas African Lack of information about the nature and cause of the Charter of Human People’s Rights (Banjul Charter), charges, in a language the arrestee understands, further Articles 6 and 7 reduces their ability to withstand pressure and coercion, • African Commission on Human and Peoples’ Rights, and increases the risk of an infringement of the right to Guidelines for Pre-Trial Detention9 silence. 7. See Report of the United Nations High Commissioner for Human Rights, Human rights implications of overincarceration and overcrowding, 10 August 2015, A/HRC/30/19, para. 39. 8. The revised United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), adopted by the UN Commission on Crime Prevention and Criminal Justice on 22 May 2015, endorsed by the Economic and Social Council on 9 September 2015, E/RES/2015/20 and adopted by UN General Assembly Third Committee on 5 November 2015, A/C.3/70/L.3 (at the time of printing this Resolution was pending adoption by the plenary of the UN General Assembly.) 9. Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, adopted by the African Commission on Human and Peoples’ Rights (the Commission) during its 55th Ordinary Session in Luanda, Angola, from 28 April to 12 May 2014. http://www.achpr.org/files/special- mechanisms/prisons-and-conditions-of detention/guidelines_arrest_police_custody_detention.pdf <accessed 3 December 2015>. 10. Decision of the Constitutional Council
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