A/HRC/13/39/Add.5
While I do not want to exclude that this has been the case per se, it further highlights the
need for a chain of documentation without any gap.
86.
With regard to informing family members and lawyers, I can conclude that the delay
in notification is not limited to exceptional circumstances, as international standards would
require, but de facto a standard practice in several countries. While solitary confinement
and restricted visiting rights may be legitimate for the shortest possible amount of time to
ensure an effective investigation during the early investigation phase, it is difficult to see
any valid justification for the denial to inform family members and lawyer of the arrest,
particularly in the case of non-serious crimes. When discussing with officials of police
stations or pre-trial facilities I realized that the lack of notification of family members or
lawyers was not for a security or investigation purpose, but simply due to a mix of
negligence and disrespect for the rights of detainees. Much more often than I would have
initially expected, detainees urged me to inform their wives or husbands, parents or
employers that they were held in police custody.
87.
As far as registration is concerned, authorities frequently registered detainees only
from the point of time when the arrest was officially proclaimed, but not from the moment
when the person was de facto deprived of his or her liberty. Such an approach evidently
misses the nature of the safeguard and hides behind an ill-guided formalism which opens
ample opportunities for abuse. Numerous detainees reported that they were earlier held
under “retention”, “summoned for questioning”, or similar provisions for prolonged periods
of time before the arrest was made official. In other cases, authorities provided the time of
arrival at the police station as the moment of arrest, and not the moment in which the
person was actually apprehended. In both cases, a significant amount of time during which
the detainee is already under the control of the police remains officially unaccounted for. It
is during these periods that persons were most often tortured, be it already at the premises
of the police station or during transfer. Official arrest was only pronounced once a person
had already been ill-treated and forced to confess. Finally, custody registers hardly ever
contained any reference to the medical state of the detainee.
(ii)
Length of police custody
88.
As already emphasised previously, detainees are under a particularly high risk of
being tortured when held in police custody. Suspects mostly find themselves in the hands of
those officers who are also in charge of investigating the crime at stake and have therefore
an interest in obtaining a confession or other information needed to solve the crime. In
order to keep this critical phase as short as possible, international human rights law requires
that any person arrested or detained on the suspicion of having committed a crime has to be
brought “promptly” before a judge or another officer authorized by law to exercise judicial
powers.53 Subsequently, the person has to be released or, if arrest is sanctioned, transferred
to a pre-trial detention facility which is ideally under a different authority than the police.
While it is left to States to stipulate precise time limits for police detention, the Human
Rights Committee has made clear that delays may not exceed “a few days”.54
89.
Summarizing my experiences, I have to conclude that suspects are held in police
custody much longer than international human rights law would provide for. First, in many
of the States visited, the domestic legal framework already provides for periods in police
custody which in my opinion are not compatible with the limit of a maximum of a few
days. This finding holds particularly true for regulations which provide for extended police
custody in “exceptional circumstances” since their application tends to become a matter of
53
54
26
ICCPR, article 9(3). Human Rights Committee, General Comment No. 8, 30 June 1982.
Human Rights Committee General Comment No. 8, para. 2.
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