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NEWS

Recent international developments on the rights of pre-trial detainees

editor - June 17, 2015 - European Commission, European Parliament, Pre-trial detention, right to information

While Fair Trials and partners from 10 different EU countries continue the UN_General_Assembly_hallproject on pre-trial detention, in anticipation of a regional report due to be launched at the European Parliament in March 2016, important steps have been taken at UN-level on pre-trial detention over the past few months.
New Standard Minimum Rules for the Treatment of Prisoners, “the Mandela Rules”, were adopted by the UN Commission on Crime Prevention and Criminal Justice last month and will hopefully be adopted by the UN General Assembly at the end of this year. These rules significantly update the 60-year-old Rules for the Treatment of Prisoners, and include key changes for pre-trial detention too.
The rules have been restructured firstly to lay out basic principles with regards to the treatment of prisoners pre- or post-trial – including a clarification that the prison system “shall not […] aggravate the suffering inherent in such situation” (Rule 3), but rather ”protect society against crime and “minimize any differences between prison life and life at liberty” (Rule 5). Other changes focus on the treatment of detainees within the prison structure (see Rule 5, 24-35, 39, and 43-44).
Directly reflecting what we regularly experience through our casework as one of the biggest challenges faced by detainees around the world, the new rules provide for extensive access to legal representation, not just before trial, but on any legal matter as well as the right to confidential meetings assisted by an interpreter if needed (Rule 60). Legal representation is essential in order for pre-trial detainees to be able to prepare for each detention hearing, to obtain a fair trial and to submit any other legal complaint.
Unfortunately, these rules remain aspirational in many parts of the world at the moment, as we know through our casework and as the Subcommittee on Prevention Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment ('the Subcommittee' henceforth) emphasised in its 8th Annual report published in March. Many of the approximately 3.3 million pre-trial detainees worldwide are too often treated badly. Instead of meeting with a lawyer regularly and in private and with the support of an interpreter where needed, and being able to scrutinise evidence brought forward against them, they are too often placed in overcrowded and unhealthy prisons. Challenges to a fair trial, their personal health and safety are further restricted, as many pre-trial detainees are too poor to afford a lawyer to challenge their detention or the charges brought against them, cannot pay for access to medical support, or the often necessary bribes to secure better treatment and conditions (as the Subcommittee determined), with the consequence that some will confess to a crime they have not committed in the hope to escape detention (or even torture) sooner.
The Subcommittee –has therefore emphasised the need for the ultima-ratio principle to be upheld in relation to pre-trial detention in order to reduce prison overcrowding, and for the more regular use of alternatives to pre-trial detention which are realistic for the specific suspect – an important suggestion considering that even in the US, financial sureties are often unaffordable by many, as the New York Times outlined last week. The Subcommittee also suggests that pre-trial detention periods must be reduced and access to a lawyer and legal aid ensured, to counterbalance the vulnerability of the pre-trial detainee. Its view is that such improvements should reduce prison overcrowding, especially in those countries where pre-trial detainees represent up to 80% of the prison population, reduce cost, enhance the fairness of subsequent trials and better protect the human rights of the individual suspect.
These developments represent increasing recognition of the rights of detainees, including pre-trial detainees, yet remain non-binding standards. We hope that the European Commission will before long publish a proposal for legislation setting out minimum standards on pre-trial detention decision-making which will be enforceable across the EU and which may help to push standards up across the globe.

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