Pretrial Detention and Torture Moritz Birk, Julia Kozma and Debra Long MULTI-DISCIPLINARY MEETING THE GLOBAL CAMPAIGN FOR PRETRIAL JUSTICE 19th-20th November 2009 Open Society Justice Initiative

Overview I)Legal Framework II)Practice of Torture and Ill-Treatment in Pretrial Detention: –Upon arrest –In police custody –In remand detention III) Systemic Factors Conducive to Torture and Other Ill-Treatment IV) Recent Developments to Prevent Torture and other Ill-Treatment

The Definition of Torture in the CAT Article 1 CAT Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as –obtaining from him or a third person information –or a confession, –punishing him for an act he or a third person has committed or is suspected of having committed, –or intimidating or coercing him or a third person, –or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Other forms of cruel, inhuman or degrading treatment.

People deprived of their liberty most at risk of being subjected to torture and other ill-treatment – under power of authorities Torture – most likely during investigatory stages to obtain information/confessions Cruel, inhuman degrading treatment – poor conditions of detention, harsh disciplinary measures etc. Risks to Pre-trial Detainees

Systemic Factors – Lack of Safeguards Excessive length of police custody (48hour-rule) Criminal justice system focussing on confessions – poor investigative tools – pressure to solve cases Lack of general awareness Impunity Lack of basic safeguards (legal provisions/implementation), inter alia: - medical examinations- judicial review - access to lawyers- registers - access to families- audio- / videotaping - complaints mechanisms- monitoring

Systemic Factors Excessive recourse to remand detention Excessive length of remand detention Inadequate resources and prison management (bureau interne) Non-separation of women from men, pre-trial from convicted prisoners and juveniles from adults (inter-detainee violence) Corruption Lack of complaints mechanisms and monitoring

Developments and Opportunities OPCAT –Innovative treaty which strengthens national efforts to combat torture and other ill- treatment –Establishment of National Preventive Mechanisms (NPMs) is a crucial development –NPMs have broad preventive mandate: Visits to all places of detention Recommendations and advice aimed at addressing systemic problems e.g. Judicial, legislative, training and educational reforms.

Paralegal Advisory Service (PAS) –One example of positive action at the national level to improve prompt access to legal advice –PAS projects supported by PRI – Malawi, Uganda, Sierra Leone –Paralegals work with authorities; aim to identify at an early stage people eligible for bail or those who are arbitrarily detained; increase awareness of rights among detainees etc. –Does not substitute duty to provide qualified legal assistance but useful community based action –More research required on impact of these types of initiatives

Thank You! UN Special Rapporteur on Torture, OHCHR: Ludwig Boltzmann Institute of Human Rights, Vienna: Atlas of Torture: Bristol University, Human Rights Implementation Centre: themes/hric/aboutcentre.html