Ten human rights organisations including Fair Trials have written to the Inter-American Commission on Human Rights to request a public hearing on the holding of virtual custody hearings in the Latin American Region. We are also asking the Commission to address the detrimental impact of such remote hearings on prevention of torture.
The organisations include, Instituto de Defesa do Direito de Defesa (IDDD), el Instituto de Justicia Procesal Penal (IJPP), Fundación para el Debido Proceso (DPLF), Observatorio de Derechos y Justicia (ODJEC), Conectas Direitos Humanos, Fundación Construir, Asociación para la Prevención de la Tortura (APT), Asociación por las Libertades Públicas [LLPP], y Red de Defensores/as Democráticos/as (REDD).
During the pandemic, most countries in Latin America suspended judicial activities and delayed some hearings to protect people’s health and safety by reducing the possibility of COVID-19 transmission. Many countries turned to remote hearings, using online video or audio-conferencing technology and other similar tools, as an alternative to in-person hearings in the context of both pre-trial and trial proceedings. Currently it is necessary to differentiate between those audiences that must necessarily occur in person, and those that could be held remotely. Particularly, it is essential to address the regional situation of the initial or custody hearings, as a fundamental procedural moment of control (and safeguard) of the individual guarantees of the detainees.
Custody or Initial hearings are designed in large part to identify whether detainees have been tortured. The detection of torture is largely aided by the physical presentation of the detained person before an independent defence lawyer and a judicial authority, as well as by the access in person to an independent medical examination. It has been repeatedly confirmed that accompaniment, in the early stages of detention, is essential for the effective prevention of torture. This includes the physical presentation of the detained person before the judicial authority. Undoubtedly, the use of video hearings undermines this possibility and represents a serious risk for the safeguarding of the fundamental rights of the detained person, who is under the exclusive custody and complete control of state agents. Similarly, it is at this hearing where decisions are made on the precautionary measures to be imposed, including pre-trial detention, which in ordinary times is used excessively throughout the region. Several studies have repeatedly shown that people detained in pre-trial detention are at greater risk of being subjected to torture or cruel, inhuman, and degrading treatment.
This thematic hearing before the Commission is requested more than a year after the beginning of the pandemic and after a rapid expansion of the use of remote technology in criminal proceedings, and the risk of the continuous expansion, normalisation and permanence of video hearings, specifically in initial or custody hearings, in the post-pandemic period. Given that the practice of torture (largely committed by state agents) is a reality that has not been overcome in the region, the weakening of the initial or custody hearings means a huge setback in the fight against torture, understanding that these hearings represent one of the fundamental pillars in preventing it.
Considering the danger that remote proceedings, now common in many countries, pose for the detection and prevention of torture, and the safeguards of the fundamental rights of detained persons including the right to a fair trial and due process, the IACHR cannot ignore this issue. We also propose the creation of regional guidelines that can better inform the use of technologies in criminal proceedings, now and in a post-pandemic future.
