OEA/Ser.L/V/II.163 Doc. 105 3 July 2017 Original: Spanish INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Report on Measures Aimed at Reducing the Use of Pretrial Detention in the Americas 2017 www.iachr.org OAS Cataloging-in-Publication Data Inter-American Commission on Human Rights. Rapporteurship on the Rights of Persons Deprived of Liberty. Report on measures aimed at reducing the use of pretrial detention in the Americas. p. ; cm. (OAS. Official records ; OEA/Ser.L/V/II) ISBN 978-0-8270-6663-2 1. Preventive detention--America. 2. Prisoners--Civil rights--America. 3. Pre-trial procedure--America. 4. Criminal procedure--America. 5. Detention of persons--America. 6. Human rights--America. I. Title. II. Series. OEA/Ser.L/V/II.163 Doc. 105 Document published thanks to the financial support of the Spanish Fund for the OAS. The positions herein expressed are those of the Inter-American Commission on Human Rights and do not reflect the views of the Spanish Fund for the OAS. INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Francisco José Eguiguren Praeli Margarette May Macaulay Esmeralda Arosemena de Troitiño José de Jesús Orozco Henríquez Paulo Vannuchi James L. Cavallaro Luis Ernesto Vargas Silva Executive Secretary Paulo Abrão Assistant Executive Secretary Elizabeth Abi-Mershed The Commission acknowledges the special efforts of its Executive Secretariat in producing this report, and in particular, Sofía Galván Puente, Human Rights Specialist. Approved by the Inter-American Commission on Human Rights on July 3, 2017. TABLE OF CONTENTS EXECUTIVE SUMMARY 11 CHAPTER 1 | INTRODUCTION 21 A. Background, Scope, and Purpose of the Report 21 B. Structure 27 C. Methodology 29 CHAPTER 2 | MAIN GAINS AND CHALLENGES: MORE THAN THREE YEARS AFTER THE ISSUANCE OF THE REPORT ON THE USE OF PRETRIAL DETENTION IN THE AMERICAS 35 A. General Measures in Relation to State Policies 35 1. Legislative Measures 37 a. Duration of Pretrial Detention 38 b. Imposition of Greater Requirements for Applying Pretrial Detention 39 c. Establishment of Pretrial Services 40 d. Guilty Pleas or Abbreviated Trials 41 2. Administrative Measures 45 3. Judicial Measures 48 a. Relevant Gains in the Case-Law 49 b. Main Challenges to Judicial Officers 53 B. Eradicating Pretrial Detention as Anticipated Punishment 56 1. Expanding the Grounds for Imposing Pretrial Detention 57 2. Establishing Offenses Requiring Pretrial Detention and Offenses with Greater Restrictions on the Use of Non-Custodial Measures 60 C. Public Defender Service 63 1. General Considerations 63 2. Policy of Addressing the Situation of Persons Held in Pretrial Detention as a Good Practice 66 CHAPTER 3 | ALTERNATIVES TO PRETRIAL DETENTION 73 A. General Considerations 73 B. Gains and Challenges Applying Alternative Measures 75 1. Legislative, Administrative and Judicial Measures 75 2. Supervision of the Application of Alternative Measures 78 3. Violation of the Terms of Non-Custodial Measures 80 C. Types of Alternative Measures 81 1. Electronic Monitoring Mechanisms in Criminal Matters 81 a. Legislative and Administrative Measures 82 b. Main Challenges 84 i. Limited Application of Electronic Surveillance 84 ii. Obstacles to Accessing this Measure by Persons Living in poverty or with Low Incomes 86 iii. Delays in the Implementation of the Measure 87 2. Restorative Justice Programs in Criminal Matters 89 3. Drug treatment Programs under Judicial Supervision 93 a. Advantages and Aspects of Concern 94 b. Practices of States 98 CHAPTER 4 | OTHER MEASURES AIMED AT REDUCING THE USE OF PRETRIAL DETENTION 105 A. Periodic Review of the Situation of Persons in Pretrial Detention 106 B. Measures to Ensure the Holding of Hearings 108 C. Prison Hearings 110 1. Bolivia’s “Judicial Days” 111 D. Preliminary Hearings to Determine whether Pretrial Detention is in Order 113 1. Legislative Reform 114 2. Custody Hearings (audiencias de custódia) in Brazil 115 a. General Considerations 115 b. Operation in Practice 117 c. Allegations of Torture or Ill-Treatment 119 CHAPTER 5 | WOMEN AND OTHER PERSONS BELONGING TO GROUPS AT SPECIAL RISK 125 A. Women 125 1. General Considerations 125 2. Practices of States 131 a. Respect and Guarantee of the Rights of Women Deprived of Liberty 131 b. Gender Perspective in the Application of Alternatives to Pretrial Detention 132 B. Special Content of the Differentiated Approach of Respect and Assurance of the Rights of Persons Belonging to Groups at Special Risk 135 CHAPTER 6 | CONCLUSIONS AND RECOMMENDATIONS 143 A. General Measures Related to Matters of State Policy 145 B. Eradicating Pretrial Detention as Anticipated Punishment 148 C. Public Defense 149 D. Independence of Judicial Officers 150 E. Alternatives to Pretrial Detention 151 F. Electronic Monitoring Mechanisms in Criminal Matters 152 G. Restorative Justice Programs in the Context of Criminal Matters 153 H. Drug Treatment Programs under Judicial Supervision 154 I. Measures Related to Speedy Process and Correcting the Procedural Delay 155 J. Pretrial Detention Hearings 156 K. Women and Other Persons Belonging to Groups at Special Risk 157 EXECUTIVE SUMMARY Executive Summary | 11 EXECUTIVE SUMMARY 1. For the last two decades, the Inter-American Commission on Human Rights (hereinafter “the IACHR” or “the Commission”) has noted that the arbitrary and illegal application of pretrial detention is a chronic problem in the region. The IACHR recalls that for this regime to be compatible with international standards, pretrial detention must be based on consideration of the right to the presumption of innocence and must take into account the exceptional nature of this measure; moreover, it should be applied in keeping with the criteria of legality, necessity, and proportionality. The deprivation of liberty of the person accused should have a procedural aspect, and, accordingly, can only be based on its legitimate aims, namely to ensure that the accused will not obstruct the development of the procedure or elude the action of justice. Similarly, the IACHR recalls that the provisions that exclude the possibility of noncustodial measures in light of the seriousness of the act or the expected sentence are contrary to the applicable standards. 2. In its Report on the Use of Pretrial Detention in the Americas, issued December 30, 2013, the IACHR concluded that the non-exceptional use of pretrial detention is one of the most serious and widespread problems faced by the member States of the Organization of American States (OAS) when it comes to respecting and ensuring the rights of persons deprived of liberty. The excessive use of pretrial detention is one of the clearest signs of the failure of the administration of justice and constitutes an unacceptable structural problem in a democratic society that respects the right of every person to the presumption of innocence. In that report, the Commission incorporated a series of recommendations to the States – legislative, administrative, and judicial – to make the use of pretrial detention as a precautionary criminal justice measure compatible with their international obligations in respect of human rights. 3. The purpose of this study is to follow up on the 2013 report on pretrial detention by analyzing the main gains and challenges regarding the use of this measure by the States. The recommendations with respect to which the IACHR will focus on in its follow-up were selected based on considering that the efforts made to carry them out reflect with greater clarity the accomplishments and difficulties that have arisen in the use of pretrial detention in the region. In addition, the IACHR considers that analyzing the Inter-American Commission on Human Rights | IACHR 12 | Report on Measures Aimed at Reducing the Use of Pretrial Detention in the Americas follow-up to these recommendations is most useful for the States to better understand the matter, and, therefore, for them to have an additional instrument for adopting state policies aimed at reducing pretrial detention in the Americas. In particular, the recommendations examined in this follow-up report address the following: (a) general measures regarding state policies; (b) eradicating pretrial detention as an anticipated penalty or a tool for social control; (c) public defender services; (d) the use of alternatives to pretrial detention; and (e) celerity in the procedures and correcting the procedural delay. Considering that the IACHR’s first report on pretrial attention was issued on December 30, 2013, the period covered in this analysis runs from January 2014 to April 2017. 4. This report also provides more detailed standards with respect to the adoption of specific measures that seek to reduce the use of pretrial detention in keeping with the relevant international standards, such as periodic review of the pretrial detention regime; actions to guarantee that hearings are held; hearings in prisons; oral hearings on the admissibility of pretrial detention a; use of alternatives to pretrial detention; electronic monitoring mechanisms for criminal matters; restoratives justice programs in criminal matters; and drug courts. The IACHR notes that this study places emphasis on applying alternative measures, which are procedural measures or options that allow the accused to be free while the criminal trial is ongoing. The report notes the need to incorporate a gender perspective, applying alternative measures for women, considering the discriminatory sociocultural patterns and stereotypes that expose women, in particular, to human rights violations. The report also