CAT/C/54/2
reprisals against judges and other officials who may grant alternative measures to pretrial
detention. States parties, NPMs and other national actors must ensure that no one suffers
reprisals as a result of granting or being granted an alternative to pretrial detention. That
will require not only mechanisms to be put in place to protect individuals who may be
affected but also broader awareness-raising initiatives to explain alternatives to pretrial
detention.
90.
Furthermore, some detainees spend longer in pretrial detention than the prescribed
maximum sentence for the alleged crime. Such persons should be identified and released.
Effective oversight mechanisms and case management procedures should be in place to
prevent that situation. The Subcommittee also notes that outdated offences within national
legislation can contribute to excessive numbers of individuals being held in pretrial
detention and can be discriminatory, disproportionately affecting the most disadvantaged
and marginalized in society. Repealing outdated offences can therefore be an effective way
of reducing pretrial detention with minimal cost, and the Subcommittee will work with
States parties, NPMs and other stakeholders to review national legislation in order to
identify any outdated offences to be repealed.
91.
The right of detainees to have access to a lawyer at the outset of detention is vital to
safeguard against torture and other ill-treatment and ensure respect for fair trial rights.
However, in many States parties there are insufficient numbers of practising lawyers, and
access to a lawyer can be difficult for many persons deprived of their liberty in the criminal
justice context. In its preventive approach to pretrial detention the Subcommittee takes note
of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice
Systems, which, in paragraph 9, assert that the first providers of legal aid are lawyers, but
recognize that a wide range of stakeholders can also be involved as legal aid service
providers, such as NGOs, community-based organizations, religious and non-religious
charitable organizations, professional bodies and associations and academia. As well as
being a fundamental safeguard against torture and other ill-treatment, access to a lawyer is
important during periods of pretrial detention in order to prepare for trial and ensure fair
trial rights. In some States there are limited or no facilities within places of pretrial
detention for detainees to meet confidentially with a lawyer. The Subcommittee and NPMs
have an important role to play in checking that the necessary measures and facilities are in
place to guarantee access to a lawyer for pretrial detainees.
92.
Judges, magistrates, prosecutors and other judicial officers also have a role to play in
ensuring that persons deprived of their liberty are not subjected to torture and other illtreatment. They should be vigilant to the risk of torture and other ill-treatment and use the
full extent of their powers to ensure that national and international law is adhered to at all
stages of deprivation of liberty. Those who have a visiting mandate should conduct visits
not only to places where convicted detainees are held but also to places where there are or
may be pretrial detainees. States should ensure that all judicial officers, prosecutors and law
enforcement officials are trained effectively in international human rights law and in
particular on the use of non-custodial measures, human rights compliant interrogation
techniques and the effective investigation of torture and other ill-treatment. Where a person
alleges or there is reason to suspect that torture or other ill-treatment has occurred, an
investigation must be carried out in line with the Principles on the Effective Investigation
and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
93.
The right to have access to medical services at all times during deprivation of liberty
ensures respect for the right to the highest attainable standard of health and is a crucial
safeguard against torture and other ill-treatment. A range of factors can exacerbate poor
health conditions during pretrial detention. In some States places of pretrial detention are
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