Penal Reform International would like to thank Julia Kozma for drafting this paper. This paper has been produced under Penal Reform International’s project, ‘Increasing oversight over Georgia’s anti-torture commitments and the compliance with the international standards’, with the financial assistance of the Open Society Foundations. The contents of this document are the sole responsibility of Penal Reform International and can in no circumstances be regarded as reflecting the position of the donor. © Penal Reform International 2018. Penal Reform International (PRI) is an independent non-governmental organisation that develops and promotes fair, effective and proportionate responses to criminal justice problems worldwide. We promote alternatives to prison that support the rehabilitation of offenders, and promote the right of detainees to fair and humane treatment. 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Penal Reform International 1 Ardleigh Road London N1 4HS United Kingdom +44 (0) 207 923 0946 www.penalreform.org Twitter: @PenalReformInt Facebook: @penalreforminternational DETENTION MONITORING TOOL This Factsheet is part of Penal Reform International and the Association for the Prevention of Torture’s Detention Monitoring Tool, which aims to provide analysis and practical guidance to help monitoring bodies, including National Preventive Mechanisms, to fulfil their preventive mandate as effectively as possible when visiting police facilities or prisons. All resources in the tool are also available online at www.penalreform.org and www.apt.ch. This publication may be freely reviewed, abstracted, reproduced and translated, in part or in whole, but not for sale or for use in conjunction with commercial purposes. Any changes to the text of this publication must be approved by Penal Reform International. Due credit must be given to Penal Reform International and to this publication. Enquiries about reproduction or translation should be addressed to publications@penalreform.org. FACTSHEET Detention Monitoring Tool Second edition Institutional culture in detention: a framework for preventive monitoring 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 investigations and pending trial. Pre-trial detention is not a sanction, but a measure to safeguard a criminal procedure. Because of its severe and often irreversible negative effects, international law requires that pre-trial detention should be the exception rather than the rule. At any one time, an estimated 3.2 million people are behind bars awaiting trial, accounting for 30 per cent of the total prison population worldwide. In some countries, pre-trial detainees reportedly constitute the majority of the prison population, and in some settings even over 90 per cent of detainees.2 They are legally presumed innocent until proven guilty but may be held in conditions that are worse than those for convicted prisoners and sometimes for years on end. Pre-trial detention undermines the chance of a fair trial and the presumption of innocence. It increases the risk of a confession or statement being coerced by torture or ill-treatment and ‘lessens a suspect’s possibilities of defence, particularly when the person is poor and cannot rely on a defence counsel or support to obtain evidence in his favour’.3 Alongside the general risk of violence from guards and fellow prisoners, high rates of pre-trial detention also contribute to widespread prison overcrowding, exacerbating poor prison conditions and heightening the risk of torture and ill-treatment.4 A Detention Monitoring Tool resource Second edition Incorporates the 2015 revised Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) Pre-trial detention is only legitimate where there is a reasonable suspicion of the person having committed the offence, and where detention is necessary and proportionate to prevent them from absconding, committing another offence, or interfering with the course of justice during pending procedures. This means that pre-trial detention is not legitimate where these objectives can be achieved through other, less intrusive measures. Alternative measures include bail, seizure of travel documents, the condition to appear before the court as and when required and/or not to interfere with witnesses, periodic reporting to police or other authorities, electronic monitoring, or curfews. Both the UN Standard Minimum Rules for Non-custodial Measures (the ‘Tokyo Rules’) and the UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the ‘Bangkok Rules’) encourage criminal justice systems to provide a wide range of non-custodial measures to avoid the unnecessary use of imprisonment. However, the absence of alternatives and shortcomings in their implementation have been reported by international5 and regional6 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 Association for the Prevention of Torture PO Box 137 CH-1211 Geneva 19 Switzerland +41 (22) 919 21 70 www.apt.ch Twitter: @apt_geneva |1