99
354
designed for this purpose and whose staff are not trained to perform those duties. As
a consequence of saturation in these facilities, an extremely serious situation has arisen
in some countries.
257.
On this issue, the IACHR has established that “the necessary legislative
measures and structural reforms should be adopted so that detention at police facilities
is used as little as possible, only until a judicial authority determines the legal situation
355
of the person under arrest.”
B.
Other considerations relevant to the conditions of detention of
pretrial detainees
258.
The conditions to which persons held in pretrial detention are
subjected are not only related to the right to the presumption of innocence, but also
have a direct bearing on the enjoyment of other fundamental human rights, such as the
right to a defense in trial and to maintain contact with next-of-kin. In addition to these
two aspects, this section addresses the right of persons in pretrial detention to vote and
the use of solitary confinement and high-security modules.
1.
Right to a defense in trial
259.
Article 8.2 of the American Convention establishes that every person
accused of a criminal offense is entitled during the proceedings to the following
minimum guarantees, among other ones: “(c) adequate time and means for the
preparation of his defense;” and “(d) the right of the accused to defend himself
personally or to be assisted by legal counsel of his own choosing, and to communicate
freely and privately with his counsel.” With regard to persons in pretrial detention, the
States are required to ensure these conditions in order for them to effectively exercise
their right to a defense in trial while being held in custody.
354
IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, para. 458.
Also, the WGAD (Working Group on Arbitrary Detention) established that in El Salvador “[m]ore than 2,300
persons awaiting trial are held in police cells, whose combined capacity nationwide is no more than 600. These
cells were not designed to hold people for more than 72 hours, but are being used to hold persons who are
awaiting trial, as well as persons remanded in custody during their trials.” UN, Working Group on Arbitrary
Detention, Report on the Mission to El Salvador, A/HRC/22/44/Add.2, published on January 11, 2013, para.
100. Also, in Argentina it is reported that around 10,000 persons out of the approximately 63,000 persons
deprived of liberty in the country are held in police stations. Response to survey questionnaire in conjunction
with the “Thematic Report on pretrial detention in the Americas” of the IACHR. October 6, 2012, International
Prison Observatory of Argentina.
355
IACHR, Report on the Human Rights of Persons Deprived of Liberty in the Americas, para. 459;
IACHR, Press Release 56/11 – Office of the Rapporteur on the Rights of Persons Deprived of Liberty Concludes
Visit to Surinam. Washington, D.C., June 9, 2011, Annex, para. 23.
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