As explained in the fourth annual report, the Subcommittee finds it useful to analyse such cases in order to identify underlying gaps in protection and make the most efficacious preventive recommendations. This does not mean that the Subcommittee cannot raise issues arising from specific situations which it encounters, and it has occasionally done so. However, this entails disclosing the identity of a victim of torture or ill-treatment, which requires not only the informed consent of the alleged victim but also a careful consideration of the risk of reprisals or other deleterious consequences of doing so. The Subcommittee believes that the misunderstanding of its position may be because it states in its fourth annual report that the Subcommittee has no power to undertake inquiries or to offer reparation. However, the Subcommittee can and does recommend that the authorities do so, and if such recommendations are ignored or not implemented without good reason, the Subcommittee would consider it a lack of cooperation. V.Substantive issues 69. In this chapter the Subcommittee wishes to set out its current thinking on a number of issues of significance to its mandate. A. The role of judicial review and due process in the prevention of torture in prisons 1. Summary 70.The erroneous premise that due process ends at the moment of sentencing, and that it does not apply to the actual custodial conditions and regime, encourages the use of torture and ill-treatment in places of detention, and more specifically in prisons for adults and juveniles. In addition to complaints procedures and supervision of such places of detention, there is a need for States to provide a special judicial or similar mechanism to protect the rights of all convicted and pretrial detainees. 2. Introduction 71.In the specific case of prisons, various cultural factors, such as the idea that inmates are “outside society” or that they are “dangerous” persons, or the reactions of the media to public insecurity, contribute to the neglect and vulnerability of people serving prison sentences and those who are in pretrial detention. 72.To overcome this lack of protection for inmates, it must be established in law that detainees retain fundamental rights (including the right to integrity and freedom of conscience) and only a few of their rights are suspended (such as freedom of residence) or restricted (such as the freedoms of assembly and expression). In addition, it must be established and guaranteed that they acquire some rights at the time of detention (such as the rights to food, decent living conditions and health services). There is a lack of mechanisms, procedural rules and remedies that are necessary to enforce this legal framework. In reality, detainees have “rights without guarantees”. 3. Lack of institutional protection 73.The lack of legal protection in places of detention is also related to the rehabilitative or correctional conceptions of punishment, which have contributed to the predominance of a model whereby prison authorities, technical staff and security guards unilaterally decide the punishment regime. 4. Due process 74.Due process means that certain procedures should be followed so that the State can legitimately give effect to fundamental rights; that is, it establishes a set of requirements that must be observed so that individuals can defend themselves properly against any act by the State that might affect their rights. 75.Within the criminal justice system, due process should cover not only the determination of penalties but also the safeguarding and protection of all detainees, providing a framework for the relationship between inmates and prison authorities in terms of rights and obligations, including means of obtaining defence and legal remedies. 5. Judicial control 76.Judicial intervention during the period of confinement, by judges other than those who determined the criminal charges, goes hand in hand with due process. In order for inmates to be able to invoke the standards protecting them from negligent or abusive prison authorities, there must be an impartial third party to enforce those norms, given that no one should act as both judge and jury. It is also for this reason that judges on prison enforcement matters should act only within the framework of judicial procedures conducted on an adversarial basis. As part of the criminal justice system, their role is clearly differentiated from that of monitoring bodies, and their resolutions must be fully enforceable against any government authority. 77. If relief is available from the prison administration, the claimant (that is, the inmate making a complaint) might be required to pursue that avenue of redress before proceeding to seek redress from a court. 78.The administrative authority is in charge of executing sentences and pretrial detention orders on a regular basis; however, cases lodged during these periods should fit into a trilateral relationship in which a specialized judge or a similar independent authority occupies the apex of the pyramid while the prison authorities and the inmate are situated at the lower corners in keeping with the equality of arms principle. Under a human rights approach, the inmate ceases to be the “object” of treatment and becomes a “subject” in a legal relationship in order to assert his or her rights: 79.The availability of attorneys with an expertise different from those in charge of criminal defence is essential in order to ensure that persons convicted and in pretrial detention have access to justice in prison.