PRE-TRIAL DETENTION
IN THE OSCE AREA


Organization for Security and Co-operation in Europe
Review Conference, September 1999
ODIHR Background Paper 1999/2

by Jeremy McBride



This report is one of a series of papers prepared under the auspices of the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe for the benefit of participants at the 1999 OSCE Review Conference. Every effort has been taken to ensure that the information contained in this report is accurate and impartial. We are grateful to a number of experts for their valuable contribution to this series.

These papers are intended to highlight key issues and to promote constructive discussion; the opinions and information they contain do not necessarily reflect the policy and position of the Office for Democratic Institutions and Human Rights or of the Organization for Security and Co-operation in Europe. Any comments or suggestions should be addressed to the ODIHR.

Contents
1. Executive Summary
1. Introduction
2. The Concept of Pre-trial Detention
2.1 "Arrest"
2.2 "Detention"
2.3 "Administrative" and "preventive detention"
2.4 "Pre-trial detention"
3. International Stardards Relating to Pre-trial Detention
3.1 The OSCE Commitments
3.2 Other International Instruments
3.3 Case Law
4. The Major Requirements
4.1 The decision on pre-trial detention
4.1.1 A judicial decision
4.1.2 Authority to release
4.1.3 Promptness
4.2 Justification for pre-trial detention
4.2.1 Criteria of reasonable suspicion
4.2.2 Additional criteria
4.2.3 Trial within a reasonable time
4.3 Continuing judicial supervision of the detention
4.3.1 Periodic judicial confirmation of detention
4.3.2 A right of challenge for the detainee
Challenge before a court
All issues affecting legality
Appearance before the court
Speediness
Renewable
4.4 The right to legal counsel
4.4.1 Preparation of defence
4.4.2 Preparation of judicial supervision
4.4.3 Preparation of the challenge to the detention's legality
4.4.4 Choice and payment
4.4.5 Facilities
4.5 Other safeguards
4.5.1 Right to notify other persons of the detention
Promptness
In person
Recurring
Foreign nationals
Information about right
4.5.2 Keeping records of detention
4.6 Treatment and conditions during detention
4.6.1 Torture
4.6.2 Humane conditions
4.6.3 Recognition of status
4.6.4 Detention regime
4.6.5 Separation
4.6.6 Health
4.6.7 Other requirements
4.6.8 Juveniles
4.6.9 Complaints - remedies and supervision
Complaints
Investigation
5. Alternatives to Pre-trial Detention
6. Recommendations
6.1 For the OSCE
6.2 For Participating States
6. Annexes

Executive Summary

 In all OSCE participating States people can be arrested and detained on the suspicion that they have committed a criminal offence. However, it depends on domestic legislation and practice whether people who were arrested before they have been convicted are treated according to international standards. Serious shortcomings still exist in some participating States. The aim of this report is to raise awareness of the key issues of pre-trial detention and to highlight international standards related to this subject.

Pre-trial detention is a legitimate aspect of the criminal justice system. However, the right to personal liberty and the presumption of innocence require that strict criteria must be met before someone can be detained prior to being tried by a court.

The terminology in the domestic law of many participating States does not necessarily coincide with the terminology of international standards, therefore some forms of deprivation of liberty seem to be outside the scope of international standards related to pre-trial detention. In some participating States, terms such as "arrest", "detention", "administrative" and "preventive detention" are used. However, the international standards on pre-trial detention that are laid out in this report relate to all situations in which a person is deprived of his or her liberty on the suspicion that he or she is involved in a crime. These standards are applicable independent of how such measures are termed in the respective country.

Provisions related to pre-trial detention are included in numerous instruments promulgated by international organizations, such as the United Nations, the Council of Europe and the OSCE. Some of these provisions are of a general nature and relate as well to post-conviction imprisonment, while others deal with pre-trial detention specifically. Guidance for the interpretation of these international standards can be drawn from the decisions and findings of the United Nations Human Rights Committee and the European Court of Human Rights in response to petitions related to pre-trial detention.

The international instruments establish numerous obligations on States in order to reduce the risks inherent in pre-trial detention. A key demand is that the decision on pre-trial detention has to be taken by an authority which satisfies the requirements of international standards for both independence and impartiality. These requirements are generally only fulfilled by a judge. Nevertheless, in many OSCE participating States decisions on pre-trial detention are taken by prosecuting authorities (prokuratura). This is a matter of serious concern as the prokuratura generally does not meet the requirement of independence and impartiality.

Another vital requirement is that the judicial supervision should occur "promptly" after the initial deprivation of liberty. This means that under normal circumstances the judicial supervision has to take place within one or at maximum two days.

Loss of liberty must be sufficiently justified: there needs to be a reasonable suspicion that a crime has been committed by the person concerned. However, this is not sufficient in itself, there must also be the danger that the suspect would (alternatively)

  • flee

  • interfere with the course of justice (such as intimidating witnesses)

  • commit further crimes, or

  • disturb public order (such as where a hostile reaction of the local community must be expected).

In addition to the judicial supervision of the initial decision on pre-trial detention, international standards require that there is a periodic judicial confirmation of the detention. There is no explicit requirement that the detaining authorities are obliged to submit pre-trial detention to judicial supervision after its initial confirmation by a court. However, international standards recognize that the pre-trial detainee should have the right to challenge the legality of his or her detention before a court at reasonable intervals.

The right to legal counsel is another key safeguard related to pre-trial detention. The pre-trial detainee should have the possibility to seek legal advice with regards to the defence to the criminal accusation. International standards also demand that the detainee should be entitled to seek the help of a lawyer to challenge the legality of detention before a court.

Another safeguard against the risk of abuse of pre-trial detention is the right of the detainee to notify others "without undue delay" after his or her arrest or detention. Furthermore, international standards require careful record keeping with respect to anyone in detention.

Pre-trial detainees are particularly vulnerable to torture and ill-treatment. International standards provide rules for the interrogation of pre-trial detainees. No statement made as a result of torture can be invoked as evidence in any proceedings, except against a person accused of torture. Complaints about torture or ill-treatment must be investigated promptly and properly. International instruments also lay out detailed standards for the regime and conditions of the detention.

In light of the presumption of innocence alternatives to pre-trial detention need to be considered. Depending on the circumstances of a case these could be measures such as regular reporting to the police, submission to spot checks by supervising officials, restrictions on movement or financial guarantees.

It is recommended that the OSCE assist in the effective implementation of international standards related to pre-trial detention in the participating States. Those standards should form an integral part of the training programme for OSCE field mission members. Participating States should incorporate international standards into domestic legislation. Furthermore, the establishment of independent prison inspection agencies is recommended. Judges and law enforcement personnel should receive training with respect to the relevant international standards.


1. Introduction

 Pre-trial detention seeks to ensure an effective investigation of crime and is thus a legitimate interest of a State governed by the rule of law. This legitimate interest has to be balanced against the consequences a detention prior to conviction entails for the person affected by it. The right to personal liberty is in itself a sufficient reason to require a strong justification for its deprivation prior to conviction. Furthermore, the presumption of innocence as part of the fair trial guarantee requires that the deprivation of a person's liberty prior to conviction has to be a measure of last resort. It also sets limits on the way the pre-trial detainee has to be treated. Further considerations that weigh heavily against loss of liberty will be the potentially damaging effects on the ability to prepare a defence to a criminal charge and on the right to family life of both the person detained and his or her relatives. Moreover, a loss of liberty, no matter how temporary, can lead to loss of employment and economic hardship. All these are considerations which have understandably led to the adoption of a very high threshold in international standards for the justification of pre-trial detention.

Being guided by these considerations, most of the participating States have established rules which take into account the requirements set up by the international standards related to pre-trial detention. Nevertheless, it is clear that in some participating States suspects are deprived of their liberty in circumstances which cannot be justified with legitimate interests of criminal justice. In some countries pre-trial detainees do not have the right to challenge the continuation of the deprivation before an independent court with the authority to order release. The deprivation of liberty prior to trial may in some cases last for years. As a consequence, in some participating States between 25 and 50 per cent of the prison population is made up of persons awaiting trial and in others the percentage is even higher. The situation is often exacerbated by inadequate conditions in the places of detention (particularly as regards overcrowding, medical and sanitary facilities and spread of contagious diseases), difficulties in making contact with relatives and friends and the absence of ready access to independent legal advice. In some participating States pre-trial detainees are subjected to torture.

With the aim of surmounting these human rights violations in the field of pre-trial detention, this report explains the related international standards and gives concrete recommendations on how to translate them into domestic legislation and administrative practice.


2. The Concept of Pre-trial Detention

 Although many of the terms used in international standards will generally appear familiar to lawyers, judges and others working in the legal systems, their meaning does not necessarily coincide with the way in which they are understood in any particular national legal system. The distinct understanding enjoyed by such terms in an international context is essential for the effective application of the rules concerned to a wide range of different legal traditions, ensuring that attention is focused on the essence of a situation rather than its formal characterization within a given country. However, the use of ostensibly familiar terms still often leads to the mistaken assumption that an existing national procedure complies entirely with the relevant international standard.

2.1 "Arrest"

 This is especially true in the field of criminal justice where an arrest can simply be the initial act of apprehending someone on suspicion that he or she was involved in a crime. But often it is regarded as a formal measure taken at a more advanced stage of an investigation, usually when the person affected is already no longer at liberty. The former act may be taken by the police, other law enforcement officials or (in some countries) private individuals, whereas the latter is likely to be directed by a judge or prosecutor. The distinction is obviously important if safeguards required in respect of the initial measure are only meant to be applicable when the more formal one is taken.

2.2 "Detention"

 Detention is similarly a concept which may be used in more than one way. It can simply be a factual description of a person's loss of liberty (whether or not this has a legal basis). It may also be the characterization of the particular legal processes which have that as their intended consequence. The latter processes may be ones connected with the administration of criminal justice (whether before or following conviction) but they may also serve other legitimate purposes (such as immigration control and safeguarding persons of unsound mind).

2.3 "Administrative" and "preventive detention"

 Detention which is not part of a process that can lead to a criminal prosecution is often designated as administrative. Where such detention seeks to prevent crimes being committed but is not part of a process leading to a prosecution or is not concerned with persons of unsound mind, it may well be described as preventive. A properly declared emergency will be a precondition for the use of such a measure but its justification will also be dependent on demonstrating the inadequacy of other, less draconian, powers.

2.4 "Pre-trial detention"

 This paper is only concerned with a deprivation of liberty based on a suspicion that the person affected is somehow involved in a crime (as a participant rather than as a witness). It follows many international standards that treat arrest and detention in this context as interchangeable terms for the initial measure taking away such a person's liberty where that has a legal basis. International standards also recognize and require a separate act of authorization, soon afterwards, for this initial deprivation of liberty to be continued and this may have to be renewed on a periodic basis. No specific term is used in international standards for such an authorization but, as has been seen, some national legal systems may refer to this as "arrest" or "detention".

Thus, from the initial measure (however described) until the process is concluded with a trial leading to conviction or acquittal - or is in some other way discontinued (whether because no charges are brought or they are dropped for whatever reason at some point before trial) - a person will be subject to pre-trial detention for so long as he or she is not at liberty. This will be so wherever the person is held: police cell, prison or other place of detention. The use of the term preventive in some countries to describe detention for this purpose does not alter its essential character as an element of the criminal process. It is thus not to be confused with detention that does not have the object of prosecution for an offence, regardless of whether that ultimately takes place.


3. International Standards Relating to Pre-trial Detention

 The guarantee of personal liberty is a key element in the protection of human rights to which States have committed themselves, both legally and politically, at regional and global levels. It is a consistent feature of the various commitments concerned that any deprivation of liberty should always be objectively justified and should last only so long as this can be demonstrated. Furthermore, effective supervision by an independent judiciary has been repeatedly acknowledged as the principal safeguard against abuse which any legal system must provide.

Pre-trial detention is, like every deprivation of liberty, governed by these basic principles. However, their application to its specific characteristics is also helpfully given further elaboration both in some international instruments and through the case law of the UN Human Rights Committee and the European Court of Human Rights. The requirements of international standards are applicable to the criminal process in all contexts, including any special regimes for military personnel.

The politically binding commitments (primarily those made within the OSCE framework) differ in character and methods of supervision from those that are legally binding (United Nations and Council of Europe treaties, international case law and customary international law). Nevertheless the content of both sets of commitments is essentially the same, underlining the fundamental character of the requirements involved. The text of the main provisions are set out in the Annex to this paper. These provisions are concerned solely with issues specifically relevant to detention, including the prohibition on torture and cruel, inhuman or degrading treatment or punishment. However, it should not be overlooked that no restriction on any other human rights guarantee is admissible unless it is a necessary consequence of the loss of liberty. Furthermore, the prohibition of discrimination is absolute and must be strictly observed.

3.1 The OSCE Commitments

 Pre-trial detention was not specifically mentioned in the Helsinki Final Act but the participating States signed to fulfil their obligations as set forth in instruments such as the International Covenant on Civil and Political Rights. As a consequence, a general undertaking was being given to respect the international standards already established in this context.

A first step to give this undertaking more precision came with the commitment by participating States in the Concluding Document of the Vienna Meeting to "ensure that no one is subjected to arbitrary arrest or detention" (paragraph 23.1) and to "ensure that all individuals in detention are treated with humanity and with respect for the inherent dignity of the human person"(paragraph 23.2), as well as to observe the United Nations Standard Minimum Rules for the Treatment of Prisoners and the United Nations Code of Conduct for Law Enforcement Officials.

These undertakings were deepened with the express requirement in the Document of the Copenhagen Meeting on the Human Dimension of the CSCE (paragraph 5.15) that any person arrested or detained on a criminal charge should have "the right, so that the lawfulness of his arrest or detention can be decided, to be brought promptly before a judge or other officer authorized by law to exercise this function". In addition commitments were made regarding the provision of legal assistance for persons being prosecuted (paragraph 5.17), respect for the presumption of innocence (paragraph 5.19) and access to effective remedies where rights are violated (paragraph 11).

The prohibition of arbitrary arrest and detention and the guarantee of effective remedies were specifically endorsed in the Charter of Paris for a New Europe.

Furthermore, the Concluding Document of the Moscow Meeting reaffirmed the commitment to "treat all persons deprived of their liberty with humanity and with respect for the inherent dignity of the human person and to respect the internationally recognized standards that relate to the administration of justice and the human rights of detainees" (paragraph 23). It also embodied undertakings to ensure that no one is "deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law" and to ensure that any person arrested or detained has "the right to be brought promptly before a judge or other officer authorized by law to determine the lawfulness of the arrest or detention, being released without delay if this was unlawful" (paragraph 23.1(i) and (iv)). In addition, the right to legal assistance for anyone charged with a criminal offence was once again acknowledged (paragraph 23.1(v)).

There were also commitments to allow a detained person "to notify appropriate persons" of this fact and his or her whereabouts, to ensure that detention is not used to compel such a person to confess, incriminate him or herself or to testify against others, to record "the duration of any interrogation", to permit and promptly investigate complaints regarding his or her treatment (paragraph 23.1(vi)-(x)) and to grant every victim of an unlawful arrest or detention a "legally enforceable right to seek compensation" (paragraph 23.1(xi)). In addition, there was an undertaking both "to endeavour to take measures, as necessary, to improve the conditions of individuals in detention or imprisonment" and to "pay particular attention to the question of alternatives to imprisonment" (paragraph 23.2).

Although specific OSCE commitments regarding pre-trial detention have been highlighted, the extensive undertakings given by participating States with respect to the whole range of human rights in the documents cited also needs to be borne in mind. The applicability of all such rights in the course of pre-trial detention has already been noted.

3.2 Other International Instruments

 The issue of pre-trial detention has also figured prominently in the standard-setting of both the United Nations and the Council of Europe. There was early an important statement of the basic principles in the Universal Declaration of Human Rights, namely, that deprivation of liberty should not be arbitrary, innocence should be presumed and an effective remedy should be provided for any violation of a fundamental right (Articles 8, 9 and 11).

These principles have been given more precision in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) which both start with a clear presumption in favour of personal liberty and an insistence that any deprivation of it be specifically justified (Article 9(1) ICCPR; Article 5(1) ECHR). They prohibit any deprivation of liberty that is arbitrary and require that, once someone is detained on suspicion of involvement in a crime, he or she be brought promptly before a judge or judicial officer who is authorized to determine whether the person concerned can remain in custody (Article 9(1) and (3) ICCPR; Article 5(1) and (3) ECHR). Furthermore, an indication of the need for the overall duration of any such deprivation of liberty to be closely controlled is found in their specific requirement that detained persons must be tried within a reasonable time (Article 9(3) ICCPR; Article 5(3) ECHR). Both instruments also require that it should always be possible for the lawfulness of a deprivation of liberty to be challenged in a court (Article 9(4) ICCPR; Article 5(4) ECHR).

The presumption of innocence embodied in Article 14(2) of the ICCPR and Article 6(2) of the ECHR has clear implications for the way in which a detained person is to be treated but the ICCPR is more specific on this issue, with a requirement that juveniles be kept separate from adults and that all unconvicted persons not be imprisoned with those who are convicted (Article 10 ICCPR). However, conditions of detention will also be governed by the general prohibition of torture and inhuman and degrading treatment and punishment (Article 7 ICCPR; Article 3 ECHR). Furthermore, both instruments have a fair trial guarantee which requires adequate facilities to prepare a defence and access to legal assistance (Article 14(3)(b) and (d) ICCPR and Article 6(3)(b) and (c) ECHR). This has significant implications for the detention regime. In addition, it should not be overlooked that the latter also must respect the right to family life, as well as freedom of conscience and expression (Articles 17, 18 and 19 ICCPR and Articles 8, 9 and 10 ECHR). Furthermore, all their provisions must be implemented consistently with the prohibition of discrimination (Article 2(1) ICCPR and Article 14 ECHR).

The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 15) requires that statements obtained as a result of torture should not be invoked as evidence in any proceedings. This is of considerable significance for persons in pre-trial detention since it may be during this period that they are interrogated and it is a situation in which they are particularly vulnerable to abuse. Also of value is the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. Under this States Parties submit all places of detention to inspection by an independent international body.

Some specific obligations with respect to the use of pre-trial detention in cases involving children are found in the Convention on the Rights of the Child. Its provisions are generally applicable to anyone under eighteen years of age and they thus cover those persons whom criminal justice systems tend to treat as juveniles. The Convention reaffirms the prohibition of unlawful or arbitrary deprivation of liberty in the case of children but particularly emphasizes that detention - pre-trial or any other form - should be a measure of last resort and used for the shortest appropriate period of time where children are concerned (Article 37(b)). It also requires that children deprived of liberty should be treated with humanity and dignity, with due account being taken of the needs of persons of their age (Article 37(c)). There is a particular obligation to ensure that they are kept separately from adults unless it is considered in their best interest not to do so (Article37(c)).

All these treaty commitments have been subject to reaffirmation and elaboration, notably in resolutions adopted by the General Assembly of the United Nations. The general support for such resolutions underlines their authority as a guide to the requirements of the legally binding instruments. Their detail is helpful for those seeking to give effect to those instruments mentioned above. These instruments include the:

  • United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), 1955 and 1977;

  • United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), 1985;

  • Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment (Body of Principles), 1988;

  • Resolutions of the Eighth United Nations Congress on the Pre- vention of Crime and the Treatment of Offenders, 1990;

  • United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, 1990;

  • United Nations Standard Minimum Rules for Non-custodial Measures (Tokyo Rules), 1990;

  • Declaration on the Protection of All Persons From Enforced Disappearance, 1992; and the

  • Council of Europe's European Prison Rules (European Prison Rules), 1987.

Further authoritative guidance is to be found in the General Comments of the United Nations Human Rights Committee, issued as part of its functions in supervising the implementation of the ICCPR.

The prohibition of arbitrary detention, including the misuse of pre-trial detention, is also an established rule of customary international law.

3.3 Case Law

Both the ICCPR (through its First Optional Protocol) and the ECHR make provision for the determination of petitions alleging violations of their provisions. These procedures have been used on a number of occasions to address the issue of pre-trial detention and the United Nations Human Rights Committee and the European Court of Human Rights have found various aspects of law and practice to be in breach of the international standards applicable, notably as regards the grounds for and length of such detention but also the safeguards against abuse. Although these rulings have been directed to a particular State, their guidance as to the fulfilment of international requirements is relevant to all who have made the commitments concerned. The effect of this case law is, therefore, reflected in the discussion of the main requirements governing pre-trial detention that follows.


4. The Major Requirements

 International standards clearly acknowledge that the prevention of crime can justify some restrictions on personal liberty. In particular there is an explicit recognition that the deprivation of someone's liberty before he or she is tried for offence may be justified. However, this has to be seen in the context of the unambiguous presumption in favour of personal liberty embodied in all international standards. This presumption is the basis of a number of significant safeguards regarding the use of pre-trial detention. These relate to the decision to deprive someone of their liberty, the grounds on which this will be regarded as justifiable, the exercise of continued judicial supervision over such detention and the unimpeded access to legal assistance, as well as the conditions in which the person concerned is held. Moreover, the acceptability of pre-trial detention has to be judged in the light of alternative ways in which the interests of criminal justice can just as effectively be served.

4.1 The decision on pre-trial detention

 In a criminal justice system the initial deprivation of liberty will usually be a measure carried out by a police or other law enforcement officer, whether acting under a general power conferred by the law or under a specific authority directed to the person concerned. Such a measure may be taken because of the immediate needs of the criminal justice system - whether to prevent a crime from actually being committed, to prevent a possible perpetrator from escaping or to establish his or her identity - but is more generally a way of initiating the criminal process against someone suspected of involvement in a crime. Although certain preconditions are applicable to the exercise of such a power (see Chapter 4.2), these are recognized in all international standards as only offering a limited safeguard against abuse. For this reason these standards insist on the initial deprivation of liberty then being subject to prompt supervision by a judge or other officer authorized to exercise judicial power. There are three important elements in this requirement: the character of the person exercising the supervision; the authority to release the person concerned; and the period of time within which such supervision should occur.

4.1.1 A judicial decision

 Any reference in international standards to a function being performed by a judge automatically connotes compliance with the fundamental requirements of independence and impartiality found in the fair hearing guarantee. However, several international standards1 require that the initial supervision of the detention has to be carried out by an "officer" (or "official" or "other authority") or a judge. This might lead to the conclusion that a somewhat less exacting requirement has to be met where pre-trial detention is involved but this has not been the view taken in international case law. Although the decision to authorize the continued deprivation of liberty may in principle be taken by someone other than a judge, the judicial character of the role has been seen to be decisive. The person taking it must, therefore, still be able to satisfy international standards relating to both independence and impartiality. It thus seems extremely improbable that the international requirements are met when this role is performed by any other authority than a judge. As a consequence there are serious doubts as to the acceptability of decisions confirming (as opposed to initiating) pre-trial detention being taken by a prosecuting authority(prokuratura), as is the case at present in a number of participating States.

The obstacle to a prosecutor supervising a pre-trial detention decision will not necessarily lie in satisfying the requirement of institutional independence. Some prosecutors have sufficient legal guarantees against pressure both from the executive and legislative branches and from their superiors to ensure that they are truly independent in the decisions that they take. Such independence is important and efforts to strengthen it undoubtedly serve to increase confidence in the criminal justice system. Nevertheless, it is not sufficient for the performance of a judicial role. The real difficulty is to be found in respecting the impartiality requirement as there is always the possibility that the prosecutor who decides on the issue of detention will subsequently have a role in the actual prosecution of the person concerned. Even though some prosecutors may enjoy institutional independence, international standards do not accept that this is sufficient when they are also a party in the criminal proceedings. It follows from this view that a person taking that prosecutorial role could not be expected to be impartial when performing a judicial function in the same case.

The impartiality requirement will not just be breached where the prosecutor actually does become involved in the prosecution. It is sufficient that there be a possibility for such an involvement. It may be that organizational and legal changes could preclude the possibility of such a dual role being played by a prosecutor in an individual case but this is likely to prove extremely cumbersome in practice. Certainly a successful solution has not been found by those participating States who have already been the object of successful challenges before the European Court of Human Rights. Their response has been to remove the power of prosecutors to order or confirm detention from criminal procedure codes. Similar changes have also been made by some participating States as part of the process of ensuring compatibility with the European Convention on Human Rights when joining the Council of Europe.

The problem of impartiality can also affect the position of judges. There is an extensive body of case law concerned with whether a judge's involvement in pre-trial decisions is such that he or she lacks objective impartiality to preside over the trial. This is something that will arise where, in making any decision with respect to pre-trial detention, a judgement had to be formed as to whether the detained person was or was not guilty.

4.1.2 Authority to release

 The supervision requirement then entails that the judge before whom the person is brought should be responsible for determining whether his or her detention can be continued or must be terminated. The basis for this determination ought solely to be whether or not a lawful justification for detention has been established to the judge's satisfaction (as to the grounds, see Chapter 4.2). This requires the judge to make his or her own assessment of the evidence submitted and a reasoned decision on the issue is required, including why alternative measures (see Chapter 5) cannot be used where release is refused. A ritual incantation of a formula will be taken as demonstrating that no consideration was given to the merits of the particular application for release. The judge's ruling on this issue must have binding effect. Only an appellate court satisfying international standards of independence and impartiality should have the capacity to overturn the judicial order for release. If the judge's ruling is only advisory or is subject to some form of confirmation by another body then there will have been no compliance with the safeguard required by international standards. This is specifically required by Principle 11(1) of the Body of Principles. It is also the essence of the judicial function that there be competence to determine the issue.

4.1.3 Promptness

 A vital part of the requirement of supervision is that it should occur soon after the initial deprivation of liberty occurs.2These standards lay down that a detained person should be brought before the judge or other officer "promptly". Furthermore, this is a requirement inherent in the overarching international prohibition of any arbitrariness with respect to a person's detention. Particular attention has been given to establishing the outer limit to the interval between the initial deprivation of liberty and the point at which this is first subjected to judicial supervision. However, such supervision should occur at the earliest practicable opportunity within that limit.

Where the length of the delay before the initial judicial supervision has been challenged, international case law has accepted that promptness is always a matter of the particular circumstances of a case. However, as the supervision is intended to minimize the risk of arbitrariness, deprivation of liberty prior to such supervision will not be regarded as acceptable where it lasts longer than is genuinely required for the purpose of processing a suspect. The principal elements involved in such processing will be the need to: bring the person concerned to a police station; gather any relevant forensic evidence from his or her person; carry out an interview to confirm his or her identity and to see whether initial suspicions can be satisfactorily allayed, as well as establish the location of evidence which is at risk of otherwise being destroyed; prevent other suspects from being alerted and thus escaping; and bring him or her to the court from the police station. The precise time taken by such preliminaries (as opposed to the full investigation) will vary with the circumstances of the individual case. The United Nations Human Rights Committee in a General Comment (8) specified that "delays must not exceed a few days". However, it should be feasible in the general run of cases for all of them to be dealt with in the course of a day or two and this is reflected both in the use of such a deadline in many national jurisdictions and the approach adopted in international case law.

The fact that the interval in a given case between detention and judicial supervision has exceeded such a period will not automatically lead to a breach of the international standard (as opposed to the domestic one if that does not permit any flexibility) but the extra time taken would have to be shown to be a necessary consequence of its particular circumstances. This might be the case where the detention occurred in some place that was more than a day's travel to the nearest police station or where there was a particularly complex arrest operation involving many suspects or where the recovery of vital evidence from a suspect required a considerable time (possible where it has been swallowed).

A prolongation of the processing will not be regarded as acceptable, where it could have been surmounted by appropriate planning and reorganization. This applies whether the difficulties arise from budgetary constraints, lack of qualified personnel, public holidays or limited working hours of courts. Participating States have a responsibility to ensure that a judge can always be made available to exercise prompt supervision over detention.

The existence of a genuine emergency could justify a longer interval provided the requirements for making a derogation have been observed. This will only be so if a remedy such as habeas corpus (see Chapter 4.3) continues to be available and there is an absolute right of access to a lawyer after 48 hours at the latest (see Chapter 4.4). However, even in an emergency detention for longer than seven days without judicial supervision has not been considered justifiable.

As the overriding requirement is to prevent unnecessary detention, it follows that there will be a breach of the specific obligation to bring someone before a court "promptly" where the detaining authorities conduct themselves in a more slowly way than it was feasible in the particular circumstances of the case.

4.2 Justification for pre-trial detention

The starting point is that there must always be a legal basis for any deprivation of liberty.3 Any breach of national law regarding pre-trial detention thus automatically makes it contrary to international standards. The latter do not, however, simply leave it to national law to determine when such detention is appropriate. Several instruments require the need for "grounds" for any loss of liberty.4 More general instruments5 require that no loss of liberty should be arbitrary and operate to set limits on when the use of pre-trial detention is justified. In particular it has to be clearly linked to the specific circumstances of the person being detained. The need for such a link is most clearly articulated in the requirement of reasonable suspicion of involvement in an offence (Article 5(1)(c) ECHR). In addition, it has to be evident that alternatives to detention are not an adequate means of protecting the interests of criminal justice. Furthermore, even if there is sufficient justification for the detention, its overall duration is constrained by the existence of a time-limit on the holding of the criminal trial.

4.2.1 Criteria of reasonable suspicion

 The initial deprivation of liberty in connection with a crime must be founded on a reasonable suspicion that it has been committed by the person concerned. This requirement endures throughout any period of pre-trial detention and release should thus follow as soon as evidence is obtained which demonstrates that the suspicion is no longer justified. No detention can be based on feelings, instincts, mere associations or prejudice (whether ethnic, religious or any other). A suspicion will only be reasonable if it is based on facts or information which objectively link the person with the crime. There will, therefore, have to be evidence of actions directly implicating the person concerned or documentary or forensic evidence to similar effect. A reasonable suspicion can, of course, be subsequently allayed, whether by an explanation being given for certain acts or other new evidence coming to light. This does render the deprivation of liberty up to that point unlawful since the admissibility of the pre-trial detention is to be judged by reference to the evidence available at the time concerned.

However, even where there is a reasonable suspicion, the actual need for the initial deprivation of liberty should also be closely scrutinized. Such a measure may be disproportionate to the crime involved or the needs of criminal justice can be satisfactorily met without taking it. This is something which has to be particularly addressed in the initial and continuing judicial supervision of pre-trial detention but it is just as relevant at the outset. An unnecessary deprivation of liberty would be regarded as arbitrary and thus inconsistent with international standards.

4.2.2 Additional criteria

 Four alternative reasons, in addition to reasonable suspicion of involvement in the crime, are recognized6 as relevant and sufficient for keeping someone in pre-trial detention after the initial deprivation of liberty. These are that there is a danger that release would lead to the suspect:

  • fleeing,

  • interfering with course of justice (such as by intimidating wit- nesses),

  • committing further crimes (particularly where there are already convictions for similar offences) or

  • disturbing public order (such as where the circumstances of the crime could lead to a hostile reaction by the local commu- nity).

However, these reasons can never be an automatic justification for continuing the pre-trial detention. There always has to be specific evidence of any of these possibilities occurring and the supervising judge must test their cogency. Thus fear of flight might be contradicted by strong family links, a strong interest in establishing one's innocence or a financial guarantee for appearance at the trial. In no instance is the seriousness of the alleged crime or the severity of the punishment which it can attract a sufficient basis for a loss of liberty. In addition, it is doubtful whether these criteria could justify pre-trial detention where the crime concerned does not itself attract a penalty of imprisonment. Furthermore, although one or more of the reasons may exist at the initial judicial supervision, they may become less pressing with the passage of time. The fear of interference with witnesses could cease to be compelling where the investigation is at an advanced stage.7 In such circumstances the person concerned should be released.

4.2.3 Trial within a reasonable time

 Article 14(1) of the ICCPR and Article 6(1) of the ECHR require that legal proceedings in general should not be excessively long. Participating States are thus expected to organize the administration of justice to prevent delay. However, this general obligation is particularly important where one of the parties to the proceedings has been deprived of his liberty. Article 9 (3) of the ICCPR, Article 5(3) of the ECHR and Principle 38 of the Body of Principles thus specifically require the fact of being subject to pre-trial detention to be a major consideration in determining what is "reasonable". International case law indicates that there will be a very heavy onus of proof to be discharged in order for pre-trial detention lasting beyond a year to be regarded as justified. However, this does not mean that such a period cannot be regarded as necessarily unacceptable. The reasonableness of the delay is to be judged by reference to the complexity of the case (such as one involving an elaborate fraud or a multiplicity of defendants), the conduct of the suspect (but this does not impose any obligation of active co-operation with a prosecution) and the organization of the courts and the prosecuting authorities. The last of these is particularly significant in leading to unacceptable delay; periods of inactivity in the conduct of a case are especially damning.

An additional consideration in assessing reasonableness will be the fact that the detained person is a child. This is expressly specified in Article 10(2)(b) of the ICCPR and rule 17 of the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty. In no circumstance is a failure to provide adequate resources for the administration of justice accepted as justification for a delay that would otherwise be regarded as excessive. The United Nations Human Rights Committee in a General Comment (8) has expressed concern about the length of pre-trial detention in some countries and emphasized that it should be "as short as possible". Pre-trial deten tion that lasts longer than the maximum sentence of imprisonment for the crime involved is unlikely ever to be considered reasonable. Furthermore, the length of pre-trial detention should not be automatically linked to the possible sentence of imprisonment that the suspected crime might attract.

4.3 Continuing judicial supervision of the detention

 The requirements for a justified detention prior to conviction will only be of real value if these are observed during the whole continuation of the pre-trial detention. International standards thus require two important safeguards to be established. The first one entails the detaining authorities being obliged to submit a deprivation of liberty to renewed judicial supervision on a periodic basis. The second one involves the detained person being afforded an independent right to challenge the justification for his or her detention before a court. Such safeguards not only help prevent unjustified detention but also expose, and thus deter, ill-treatment.

4.3.1 Periodic judicial confirmation of detention

 There is no specific reference in international standards to the detaining authorities being themselves required to submit pre-trial detention to judicial supervision after its initial confirmation by a court. However, the Body of Principles (principles 11.3 and 39) provide that a judicial or other authority should be empowered to keep the necessity of detention under review. The need for frequent periodic judicial review was also recognized in an resolution 17(2)(h) of the Eighth United Nations Congress on The Prevention of Crime and the Treatment of Offenders. Moreover, since the circumstances used to justify detention can change and become less compelling, or even irrelevant, there could be no guarantee that release was being improperly denied unless the case for continuing a person's detention was subjected to repeated scrutiny. Periodic judicial confirmation is thus an implied requirement flowing from the need for any deprivation of liberty to be justifiable. The initial scrutiny should be carried out by the detaining authorities themselves and they should, of course, release the person concerned where his or her detention was seen as no longer justified; indeed to continue detention once that conclusion had been reached would clearly make it arbitrary. However, a failure to put the issue of justification - essentially a legal judgement - before a court would shield any arbitrary decisions by the detaining authorities and lead to pre-trial detention being unduly prolonged. Every refusal of release should be reasoned with an explanation as to why alternative measures to detention could not be used. In view of the presumption in favour of liberty, it is unlikely that an interval of much more than a month between the occasions on which the justification for pre-trial detention is submitted to judicial reconfirmation would be acceptable.

4.3.2 A right of challenge for the detainee

 Several international standards8 recognize that the initiative for having the justification for pre-trial detention scrutinized should not be in the exclusive domain of the detaining authorities. They thus require that a detainee should always be in a position to challenge the legality of his or her detention. Such a requirement is, however, only a more specific formulation of the need for effective remedies for human rights violations.9 The principal elements of this safeguard - known sometimes as amparo or habeas corpus - is that the challenge is to be determined by a court and that it addresses the issue of legality in the widest sense, involves an oral hearing with legal assistance, takes place "speedily" or "without delay" and can be renewed. However, it is also important to emphasize that there should be no impediment to a detained person instituting such a challenge and this necessarily entails the ability for him or her to make direct contact with the relevant court at all times during the pre-trial detention. Furthermore, the detainee should be informed by the detaining authorities of the possibility of challenging the legality of his or her detention, as well as the procedures for doing so. This is specifically required by the Eighth United Nations Congress on The Prevention of Crime and the Treatment of Offenders (resolution 17(2)(g)(i) but, in this context, is also inherent in the guarantee of an effective remedy.

Challenge before a court

 The specific requirement that this supervision is to be performed by a court necessarily precludes any debate as to whether this function can be performed by anyone other than an independent and impartial judge following a fair procedure. Impartiality could be compromised if the judge has previously had a significant involvement with the case, such as by agreeing that the person's remand in custody after his initial apprehension was warranted or, possibly, by performing the role of investigating judge in the same case. As with the other form of judicial supervision, the crucial issue is whether the judge concerned has already formed a view on the matter to be decided. It is essential that the court hearing the matter is not only able to determine whether the pre-trial detention is lawful but also, if it is not, to bring it to an end. The ability to make only recommendations as to release or to provide other remedies for an unlawful deprivation of liberty will be seen as inadequate compliance with this requirement since the whole point is that the person affected should be able to secure his or her release where detention is not lawful.

All issues affecting legality

The ability to challenge the legality of detention must extend to the question of compliance not only with the specific provision of national law which is invoked by the detaining authorities but also with international standards. Thus, in addition to ensuring compliance with any requirements of national law, the court must address the following questions:

  • Has a reasonable suspicion been established in respect of the accused?

  • Does the pre-trial detention fall under any of the justifications previously considered?

  • Could such detention be regarded in any other respect as arbitrary?

If the court is in some way precluded from determining the answer to these questions, the safeguard required by international standards will not be provided. Furthermore, in order to address these issues, the detained person should be informed of the basis for his or her detention.10

Appearance before the court

 International case law has emphasized the need for a detained person normally to be brought before the court determining his or her challenge. This is important not only for the effectiveness of the challenge to the lawfulness of the detention but also as a way of uncovering and remedying abuses other than illegal detention (such as ill-treatment).

Speediness

 The need to be able to challenge the legality of detention "speedily" or "without delay" is not as peremptory as the promptness requirement for the initial judicial supervision already considered. There seems little doubt that an interval of a week or two between an application and its determination would be considered acceptable in many cases. However, there is likely to be particular concern about the length of the interval where the challenge to the legality is made at the outset of the detention and there has also been a failure to meet the promptness requirement. It seems clear from a vast array of cases that - notwithstanding any allowance for those that are particularly complex - the time taken should still be no more than a matter of weeks. Furthermore, delays attributable to the organization of the court system (such as a judge being on holiday or having an excessive workload) will not be acceptable.

Renewable

 The possibility of challenging the legality of pre-trial detention should not be a once and for all opportunity. As has already been seen, circumstances can change and it is possible that a previous legal justification will cease to be applicable. Thus there should be a continuing possibility of bringing a challenge so long as the detention lasts. This does not mean that the detained person should be able to bring proceedings at any and every moment, leading to paralysis in the criminal justice system. International tribunals expect there to be a possibility of mounting a challenge at reasonable intervals and are likely to consider monthly intervals to be sufficient in most cases. However, this should not be adhered to rigidly as certain circumstances could clearly justify the renewal of a challenge after a shorter interval. This could, for example, be the case where the law creating the offence on which the pre-trial detention is based has been ruled unconstitutional.

4.4 The right to legal counsel

The need to ensure that a detained person has the assistance of a lawyer arises as regards the preparation of the defence to the accusation which led to his or her detention11. Other international standards12 refer to a right to legal assistance in general. International case law has also found the need for access to a lawyer to be required for judicial supervision of detention and any challenge to its legality. The obligations regarding legal assistance in these situations do not appear to be identical. Nevertheless, they inevitably overlap and breaches of international standards are likely to ensue from attempts to treat them discretely.

4.4.1 Preparation of defence

 Assistance from a lawyer is a fundamental aspect of being able to prepare a defence to the accusation and is enshrined in all commitments to ensure a fair trial. Although the assistance of a lawyer is important at the trial itself, the effectiveness of any defence will invariably be dependent upon advance preparation. This makes it especially important for the accused to be able to discuss the case with his or her lawyer, both in person and through correspondence. This is equally true whether or not the accused is detained. Therefore the fact of detention should not be allowed to obstruct the preparation of a detained person's defence. As a consequence facilities should be made available for the accused to meet with his or her lawyer when they consider this necessary throughout the pre-trial detention.

International case law has acknowledged the prejudicial effect on a person's defence where he or she is then questioned without the assistance of a lawyer, at least where more serious charges are involved. Only in emergencies can this right be delayed and then, according to international case law, for no more than two days.

4.4.2 Preparation of judicial supervision

 The international case law has not so far insisted that the detainee's lawyer be allowed to be present at the hearing in the course of the periodic judicial supervision, which is initiated by the detaining authorities. Nevertheless, many of the relevant issues are closely connected with the preparation of a defence (notably the existence of a reasonable suspicion) and obstruction of attempts to seek advice from a lawyer is likely to breach the fair trial guarantee and would undoubtedly render the detention arbitrary.

4.4.3 Preparation of the challenge to the detention's legality

The fair procedure requirement in the case of a challenge to the legality of detention means that a detainee must be allowed access to the facilities needed to prepare his or her case and should have the opportunity to discuss it with a lawyer. The person seeking release must always be aware of all the submissions being made to justify detention, including the supporting evidence, and have an adequate opportunity to respond to them. Furthermore, the complexity of the issues involved in many challenges to the lawfulness of detention will necessitate a detainee's lawyer being responsible for preparing all the arguments and actually representing him or her in the court proceedings themselves. The entitlement to legal representation in the hearing of a challenge to the legality of pre-trial detention thus distinguishes this safeguard from the judicial supervision that is initiated by the detaining authorities themselves.

4.4.4 Choice and payment

 A detained person should generally be entitled to choose a lawyer to act on his or her behalf. Where he or she cannot afford to pay for a lawyer, international standards require that one should be appointed and paid for by participating States in all cases where legal assistance (including representation) is needed to ensure that the detained person's case is effectively presented. The detained person should be consulted before such an appointment is made. Lawyers paid for by participating States should have the necessary experience for the matter on which they are providing assistance. They should also be willing to act as his or her representative and should be replaced where not acting in accordance with professional standards. International case law and the Body of Principles (principle 14) have recognized that detained persons who cannot use a language spoken by the lawyer should be provided with the assistance of an interpreter. Furthermore, participating States are under an obligation to ensure that legal assistance is available to detained persons who cannot reasonably be expected to ask for it themselves (notably juveniles and the mentally disordered).

4.4.5 Facilities

 International case law and international standards13 require that suitable rooms should be provided in the prison or other place of detention for meetings between a detained person and his or her lawyer. Security considerations will justify these meetings being held in the sight of prison warders. However, the need for the lawyer-client confidentiality to be respected means that they should always be out of hearing range and not be subject to electronic eavesdropping. Similarly, correspondence to and from the detained person's lawyer should not be delayed nor read by the detaining authorities.

Where a detainee is preparing his or her own defence, Article 14 (3)(b) of the ICCPR and Article 6 (3)(b) of the ECHR require that he or she should be provided with the facilities and materials required for this purpose. This obligation is implied in the detained person's rights to challenge the legality of his or her detention and to have its continuation subject to judicial supervision.

4.5 Other safeguards

 There are two important additional safeguards against the risk of abuse of pre-trial detention. The first one is the right of the detainee to notify others of his or her situation. The second one is the obligation to keep records with respect to anyone in detention. These both help to ensure that his or her whereabouts are certain and that any appropriate assistance required in order to respond to the loss of liberty can be rendered. The significance of this cannot be underestimated given the use of incommunicado detention and detention without judicial supervision to effect executions, disappearance and torture. In addition, ensuring that detained persons and their families and friends are able to remain in contact is in itself of considerable importance.

4.5.1 Right to notify other persons of the detention

 The right to keep in contact with persons outside the place of detention has been given a precise formulation in several international standards14. Both the Document of the Moscow Meeting and the Body of Principles require that any person arrested or detained should be able "without undue delay" to notify appropriate persons of his or her choice of his or her arrest, detention, imprisonment and whereabouts. The Standard Minimum Rules and the European Prison Rules make reference only to informing the detained person's family but this should be interpreted in its widest sense to cover anyone with a legitimate interest in knowing about the position of the detained person.

Promptness

 All four instruments emphasize the immediacy of the notification and this should, therefore, normally be within a matter of hours of the loss of liberty. The Body of Principles recognizes that the needs of an investigation could require notification to be delayed but for no more than "a matter of days". However, it would have to be a very exceptional situation for the delay to last more than a couple of days. This is particularly so given the normal deadline for initial judicial supervision of deprivation of liberty (see Chapter 4.1) and the need to be allowed to see a lawyer after two days even in an emergency (see Chapter 4.4).

In person

 The most practical way of fulfilling the notification requirement will often be to allow the detained person to make a telephone call to the person to be notified. Security and criminal investigation considerations, as well as other more practical ones, might justify the communication being made through the detaining authorities but this is likely to be acceptable in only very exceptional cases. Such a right of notification has to be regulated by law.

Recurring

 The right to notify a person of the detainee's choice is of most immediate importance after an initial deprivation of liberty but, as the Body of Principles expressly recognizes, would also be applicable after a change in the place of detention. This specific right of notification is, of course, only an aspect of the continuing right of correspondence and contact with friends and family during pre-trial detention (see also Chapter 4.6).

Foreign nationals

 The right of notification is further underpinned by a specific obligation under the Vienna Convention on Consular Relations (Article 36 (1)) and the Body of Principles (principle 16 (2)) where the detained person is a foreign national. These require, should the detained person so request, that the consular post of the country of which he or she is a national be notified of his or her deprivation of liberty. This notification must also be carried out "without delay" and is in addition to the general right of notification.

Information about right

 A person deprived of his or her liberty needs to be informed that he or she has the right to notify others of this fact. This is expressly recognized in the Body of Principles (principle 13), given the vulnerability of the detained person, it is an implicit requirement of all the relevant obligations. Appropriate interpretation or translation should be provided where this is necessary to make the communication of this information effective.

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (rule 10.1) and the Body of Principles (principle 16 (4)) also recognize a duty on the detaining authorities themselves to notify someone where the detained person is a juvenile or cannot be expected to understand his or her right to do so. However, a failure to do this might also be regarded as rendering the detention arbitrary.

4.5.2 Keeping records of detention

 It is of great practical importance that a record should be kept regarding where a person is detained and the period for which that detention lasts. In the first place, this enables the location of anyone subject to pre-trial detention to be established which may be needed where family and friends have not received notification from the person detained. Secondly, such record-keeping will be important in any challenge regarding the legality of detention. It should encourage the detaining authorities to monitor the use of detention both in specific cases and generally. There is no treaty obligation with respect to record-keeping but failure to undertake it is likely to lead to breach of the prohibition of arbitrary detention found in all international standards15.

Both the Standard Minimum Rules and the Body of Principles require a record to be kept of the reasons for every detained person's deprivation of liberty, the time this occurred and his or her release or transfer to another place of detention. The importance of this requirement is underlined in the Standard Minimum Rules by the bar on admitting to detention anyone not first entered in the records. The Body of Principles also require details to be recorded regarding the identity of the law enforcement officials concerned, which would obviously be important in any challenge to the detention or the treatment received. Both the Body of Principles and the Declaration require that these records be made available to the detained person's family and lawyer, as well as (in the case of the Declaration) other persons with a legitimate interest in the information. This reinforces the notification requirement and facilitates any proceedings that might have to be brought on the detained person's behalf. The Declaration goes further in seeking to ensure that it does not become possible for a detained person to become "lost". Not only must there be an up-to-date register maintained in every place of detention but steps should also be taken to maintain similar centralized registers. The information contained in these registers should then be accessible by not only the detained person's lawyer and family but also judicial and other independent national authorities, any other authority entitled under the law of the State concerned or any international legal instrument to which a State concerned is a party.

A further use of record-keeping as a safeguard is found in the Body of Principles (principle 26) as regards the medical examination required on admission to the place of detention (see further "Torture" in Chapter 4.6). Although such record-keeping is a safeguard against abuse, it is also essential for the efficient organization of places of detention.

4.6 Treatment and conditions during detention

 The treatment and conditions of all persons in pre-trial detention must respect the general prohibition of torture and other cruel, inhuman or degrading treatment or punishment16. More generally, all detained persons are entitled to be treated with humanity and respect for their inherent dignity17. Furthermore, the presumption of innocence18 necessarily imposes some additional limits on the way in which persons in pre-trial detention are treated. This is a matter on which a number of international instruments have provided further elaboration, particularly where the detained persons are children. There was an express commitment by participating States to one of these - the Standard Minimum Rules - in the Concluding Document of Vienna (paragraph 23.3). These elaborating instruments have also given some specific guidance on observing the right to family life, as well as freedom of conscience and expression guaranteed by the ICCPR (Articles 17, 18 and 19) and the ECHR (Articles 8, 9 and 10). Particular attention has also been given to the need to ensure that effective remedies are provided in respect of complaints and that places of detention are properly supervised.

4.6.1 Torture

 Pre-trial detainees are particularly vulnerable to torture and other ill-treatment. As this is a period when evidence of involvement in the alleged crime is still being gathered, law enforcement officials might succumb to the temptation to put pressure on the detained person to "confess", reveal the whereabouts of evidence or implicate others. The risk of this occurring through unacceptable methods of interrogation was recognized in the Document of the Moscow Meeting (paragraph 23.1 (vii)), the UN Convention against Torture (Article 2) and the Body of Principles (principle 22), which all require effective measures to be adopted to ensure that such "undue advantage" is not taken of the detained person's situation. In particular the UN Convention (Article 15) requires that no statement made as a result of torture can be invoked as evidence in any proceedings, except as evidence in proceedings against anyone accused of torture. A similar requirement was established by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (resolution 26). The Document of the Moscow Meeting (paragraph 23 (viii)) provides that the duration of any interrogation and the intervals between them be recorded and certified, as does the Body of Principles (principle 23). However, the latter also requires that a record be made of the identity of those conducting and present at an interrogation. This should be made available to the detained person or his or her lawyer.

Proof of torture is often dependent upon the availability of reliable evidence of the victim's condition before it occurs. The requirement in the European Prison Rules (rule 29) and the Body of Principles (principles 24-27) that a detained person shall be offered a proper medical examination "as soon as possible" or "promptly" after admission is thus potentially of much evidential significance. It is strengthened by the requirement that the detained person should be entitled to request from a judicial or other authority that a second examination be carried out. Furthermore, it is provided that non-compliance with any of these requirements in order to obtain evidence against the detained person should be considered in determining the admissibility of that evidence.

A further important safeguard is that complaints about torture (or cruel, inhuman or degrading treatment) must be properly and promptly investigated. The need for this to take place has been recognized in international case law, which requires a finding of torture in cases where no such investigation into cogent allegations of ill-treatment has been conducted. The obligation for participating States to ensure that such investigations are held was also recognized in the Document of the Moscow Meeting (paragraph 23.1 (ix) and (x)) and the Body of Principles (principle 33). It has also been expressed by the United Nations Human Rights Committee in a General Comment (7(1)).

4.6.2 Humane conditions

 The international standards which prohibit torture or other cruel, inhuman or degrading treatment and require detained persons to be treated with humanity and respect for inherent dignity have been the subject of considerable international case law. This has consistently ruled it unacceptable for detained persons to be kept in conditions where there is overcrowding and inadequate bedding, food, medical treatment, opportunities for exercise and recreation, sanitation and protection from the elements, as well as where contact with the outside world is impeded. The requirement to ensure that such conditions do not exist is one that took effect immediately upon accepting the standards concerned. The general commitment in the Document of the Moscow Meeting (paragraph 23 (viii)) to "endeavour to take measures, as necessary, to improve the conditions of individuals in detention or imprisonment" thus cannot derogate from the various undertakings considered in the case law. It should, therefore, be seen as a commitment to go beyond the minimum threshold of acceptability already set out in that case law.

4.6.3 Recognition of status

 Although the minimum standards for all detained persons must be observed, there are also a number of particular requirements to be observed, stemming from the fact that persons in pre-trial detention are either not yet convicted or are juveniles.

4.6.4 Detention regime

 The guiding principle in the restrictions to which persons in pre-trial detention are subject is that the limitations should be no more than is necessary for the penal procedure and the security of the detaining institution. It should thus determine both the specific rules applied to them and the whole ethos of the place of detention. There is a need for separate quarters (see below) but those supervising persons in pre-trial detention should also be specially trained for the purpose so that they appreciate the unconvicted status of those persons and treat them accordingly. This also means that pre-trial detention in a police cell, or other place where such a regime cannot readily be followed should be for the shortest duration possible.

4.6.5 Separation

 Article 10 (2) of the ICCPR provides that persons in pre-trial detention should "save in exceptional circumstances" be segregated from convicted persons and that juveniles should be separated from adults19. The very limited recognition of the possibility of derogating from the norm of separation applies only to detained persons who are adults. The derogation allowed in respect of adults is, however, still very much exceptional. Failure to ensure segregation should at most arise from a temporary difficulty. This means that prisons and places of detention should be organized with the requirement of keeping convicted and unconvicted prisoners specifically in mind. There would be no need for them to be housed in separate buildings so long as they were kept in discrete parts of it.

4.6.6 Health

 The Standard Minimum Rules and the European Prison Rules have many provisions concerned with securing the health and physical well-being of all persons deprived of their liberty. In their application, special consideration needs to be given to the stress arising from pre-trial detention and, in particular, the risk of suicide. This should be reflected in the procedures for assessing persons subject to pre-trial detention on their admission to the place of detention and throughout the time which they spend there. Although overcrowding is inconsistent with obligations regarding dignity and humanity, it should also be appreciated that it increases the risk of infection spreading.

4.6.7 Other requirements

 The Standard Minimum Rules and the European Prison Rules also require the treatment of persons in pre-trial detention to reflect their unconvicted status in a number of other ways. Thus they recognize that untried prisoners should generally be able to sleep singly in separate rooms. Furthermore, they should be able to have their food procured at their own expense from the outside and to wear their own clothing if it is clean and suitable. Where prison dress is worn, it should be different from that supplied to convicted prisoners. Although untried prisoners should always be offered the opportunity to work, for which they should be paid, they must not be required to do so. They should be able to buy, at their or a third party's expense, such books, newspapers, writing materials and other means of occupation as are compatible with the security and good order of the institution. In addition, notwithstanding the duty to provide all prisoners with medical care, they should be allowed to be visited and treated by their own doctor or dentist if there is reasonable ground for this and they are able to pay any expenses incurred20.

4.6.8 Juveniles

 All the foregoing requirements are equally applicable to juveniles but their age gives rise to an extra-special responsibility21. The Standard Minimum Rules for the Administration of Juvenile Justice are more specific. Rule 13.5 requires that the detaining authorities ensure that juveniles receive appropriate care and protection, as well as the necessary social, educational, vocational, psychological, medical and physical assistance. Particular requirements under the United Nations Rules For The Protection of Juveniles Deprived of Their Liberty (rule 18) are that juveniles should be provided, where possible, with opportunities to pursue work, with remuneration, and continue education or training, but should not be required to do so. Such work, education or training should not, however, lead to the prolongation of their detention. In addition they should receive and retain materials for their leisure and recreation as are compatible with the interests of the administration of justice.

4.6.9 Complaints, remedies and supervision

 Where violations of human rights and fundamental freedoms have occurred, effective remedies are required22. These are often only practicable if those affected are aware of their rights. The significance of this is recognized in several international instruments23. These all require that persons in pre-trial detention be informed of their rights and how to pursue them. The Standard Minimum Rules and the Body of Principles require, in particular, that this information be provided at the commencement of the detention or promptly thereafter. However, it is equally important that such information continues to be readily available throughout the period of pre-trial detention. The Standard Minimum Rules require that the information be read to illiterate persons but appropriate interpretation would be needed to comply with these requirements where the person detained cannot understand any language used officially in the place of detention. This is effectively recognized in the European Prison Rules where the reading requirement extends to any prisoner who "cannot understand the written information". Awareness as to the existence of rights is, of course, useless if means of securing their observance do not also exist. Although persons in pre-trial detention should also have access to the courts to protect their rights, international standards have also recognized the need for both effective complaints mechanisms and independent supervision of places of detention.

Complaints

 The existence of a means of complaining about treatment during pre-trial detention is required by several international standards24. These instruments all require that it should be possible for such complaints to be made to the administration of the place of detention and that they be both dealt with "promptly" and responded to "without undue delay". The latter is an important recognition that it is not enough for a complaint to be investigated; the complainant should also know the outcome. It is also required that there be a possibility of taking the complaint further, both to higher levels of administration in respect of places of detention and the courts or other relevant authorities. The bodies to which such recourse is made must have the necessary power to remedy a justified complaint. A power to go to an outside body also underlines the importance of complaints being impartially investigated.

The Body of Principles also require that such complaints can be made by the detained person's lawyer and, where neither the person nor the lawyer can, this possibility should be exercisable by a member of his or her family or anyone else having knowledge of the matter. Both the Body of Principles and the European Prison Rules acknowledge that a detained person must sometimes be assured of confidentiality where a complaint is made. This is likely to be essential where there is a risk of reprisals by those against whom a complaint is made. The need for confidentiality should be strictly respected. Confidence in a complaints mechanism also requires that complainants should not be prejudiced for using it and this is specifically recognized in the Body of Principles.

Investigation

 Complaints mechanisms rely on individuals being prepared to come forward and this might not always be possible, particularly where serious abuses are involved. It is important, therefore, that such mechanisms be complemented by investigation of the operation of places of detention by an independent, outside body25. Investigations need to be conducted regularly and be carried out by qualified and experienced inspectors who are able to report freely on the compliance by a place of detention with all the laws and regulations, national and international, applicable to it. The investigating body should be able to see any part of a place of detention and examine all records26. The Body of Principles (principle 29(2)) and the European Prison Rules (rule 42(2)) both require that detained persons should be able to talk to members of the body without members of the staff being present. This is essential if all relevant information is to be gathered. Investigations are also usefully complemented by the duty imposed by the Body of Principles (principle 7(2)) on officials to report when violations have occurred to their superior authorities. These also recognize that anyone else with ground to believe that this has or will happen are entitled to report the matter to the superiors of the officials involved as well as to other appropriate authorities or organs vested with reviewing or remedial powers. In this way those working in places of detention should appreciate that the exercise of their powers is subject to close and effective scrutiny. A further safeguard is provided by the international scrutiny which is exercisable by the European Committee for the Prevention of Torture in respect of States Parties to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.


5. Alternatives to Pre-trial Detention

 The very strong presumption which international standards establish in favour of liberty is not meant to be at the expense of legitimate criminal justice objectives. However, as is evident from international case law, the latter do not necessarily require pre-trial detention in order to be effectively served (see Chapter 4.2). In some instances tribunals have found continued detention to be unjustified because there was not - and at least occasionally there never had been - any evidence of a risk of criminal justice objectives being prejudiced by the release of the person concerned. Nevertheless, even where some risk might exist, it has been recognized that detention is not the only solution and often that other measures could be taken which are not only just as effective. They also have the merit of directly advancing other interests (not least the ability of the suspect to work and to maintain his or her family life), as well as preventing other human rights violations from arising (such as those that flow from prison overcrowding). All these measures - which are found in many criminal justice systems - involve a degree of supervision over the suspect but the extent of this varies. Such flexibility enables the particular circumstances of the individual concerned to be taken fully into account.

Although the need to employ alternative measures is an implied requirement of international standards requiring pre-trial detention to be justified, there are also some express requirements regarding their use. Thus the Document of the Moscow Meeting (paragraph 23.2(ii)) requires participating States to "pay particular attention to the question of alternatives to imprisonment". More specifically, Article 9 (3) of the ICCPR provides that it shall "not be the general rule that persons awaiting trial shall be detained in custody" and indicates that release may be subject to guarantees to appear for trial, other proceedings and execution of judgement. The need to use alternative measures is implicit in the acceptance in Article 5 (3) of the ECHR that release may be subject to guarantees to appear for trial. Fear of the suspect's non-appearance is, of course, only one reason used to justify pre-trial detention. However, it is unlikely that its particular mention here detracts from the need to demonstrate the validity of other fears (committing further crimes, interfering with the administration of justice and disturbing public order) or precludes the need to try and use alternative measures to allay them.

The measures which might be taken as an alternative to pre-trial detention range from a requirement of regular reporting with the police (of varying frequency and either in person or by telephone), through submission to spot checks by supervising officials to restrictions on movement (whether by reference to time or place or both). In the case of children, such measures might also include close supervision, intensive care or placement with a family or in an educational setting or home. Release on this basis may also be made subject to some guarantees (usually financial) and these may have to be provided by persons other than (or in addition to) the suspect. No measure should, of course, be imposed unless there is a genuine risk to a legitimate criminal justice interest (namely, the suspect fleeing, interfering with course of justice, committing further crimes or disturbing public order concerned). However, there must also be a proper assessment of the potential of the particular measure to allay it. This should take into account that the measure borne in mind should involve the least possible interference with liberty.

Furthermore, the difficulty in observing the requirements of the measure chosen should not be used as a device simply to prevent release. Thus some sort of curfew might be relevant where there is concern to protect witnesses and public order but its geographical scope should bear some relationship to where the crime was committed and the suspect's residence. Similarly a high level of reporting might be required where there is some fear of the suspect fleeing but it might be less appropriate where the concern is about him or her re-offending. Furthermore, the framing of restrictions on movement needs to take account of the suspect's ability to work and any financial guarantees required should be linked to his or her assets, as well as to the relationship with any other person providing security.

The decision as to whether alternative measures should be used is as much one for the court as is any confirmation of a deprivation of liberty. It is important for the court concerned to be properly informed of all the relevant considerations. This means not only that it hear submissions from the prosecution and the suspect but also from an independent agency charged with making an assessment of the risk which exists and gathering the information relevant to the particular case. Such an assessment should include details about the suspect's family and social background, employment and past record of complying with alternatives to pre-trial detention, all of which are particularly helpful in establishing reliability to be trusted if released.

In some cases the use of alternatives to pre-trial detention will not prevent the apprehended risk occurring. This is not, however, a sufficient justification for a general abandonment of them. International standards require that restrictions imposed in individual cases are always based on their particular circumstances and the appropriate response to instances of abuse is to review the assessment process. Nevertheless, there will undoubtedly be cases where alternative measures cannot provide a sufficient guarantee that release is appropriate. However, the very existence of those alternative measures should mean that there can be nothing automatic about depriving a suspect of his or her liberty prior to trial.


6. Recommendations

6.1 For the OSCE

 The fundamental importance of commitments relating to pre-trial detention should be reaffirmed. The value of the elaboration of these commitments through other international instruments and case law should be specifically recognized in such a reaffirmation.

Assistance should be provided, where necessary, to secure the translation of all relevant standards into the languages used in all participating States. These translations should be made widely available in both printed and electronic form.

Effective implementation of international standards on pre-trial detention should become a central part of efforts to secure the rule of law and the protection of human rights. Attention should be given to assisting participating States, where necessary, to review legislation and regulations to ensure that they are in conformity with international standards. Such assistance shall also be provided to help to identify practical obstacles to the full implementation of international standards and to develop appropriate strategies whereby these might be overcome.

Assistance should also be provided in the development of appropriate training programmes and manuals for judges, law enforcement officials and all concerned with running places of detention.

The international standards on pre-trial detention should be part of training programmes for OSCE field mission members.

6.2 For Participating States

 A presumption should be established in criminal procedure law - where this does not already exist - in favour of liberty for suspects prior to any trial. This presumption should be supported by the specification of the precise grounds on which deprivation of liberty as part of the criminal process is permitted. These grounds should be limited to the particular criminal justice interests in the case concerned. Furthermore, there should be an obligation to ensure that a deprivation of liberty - whether at the outset of an investigation or at any stage prior to trial - only occurs where it is genuinely required for those interests.

The criminal procedure law should provide, where it does not already do so, for the use of alternatives to deprivation of liberty as a way of supervising a suspect prior to the trial. Appropriate administrative arrangements should be put in place to facilitate the operation of these alternative measures. Consideration should always be given to making use of such measures before any deprivation of liberty occurs.

After the initial apprehension of a suspect, the responsibility for authorizing any continued deprivation of liberty should be vested exclusively in a court satisfying international standards relating to independence and impartiality. The initial supervision should normally take place within a day or two of the initial deprivation of liberty, or even sooner where that is possible. In considering whether the deprivation of liberty should be continued, the court should be assisted by an independently prepared report on the possibility of using alternative measures with respect to the suspect concerned. In determining the issue, the court should regard deprivation of liberty as an exceptional measure to be used only as a last resort. Where continued deprivation of liberty is authorized, this ruling should be subject to frequent reviews by a court. This renewed supervision should pay particular regard to whether the circumstances initially justifying detention are still applicable. All decisions authorizing pre-trial detention or its continuation should be properly reasoned.

The criminal procedure law should provide, where it does not already do so, for an independent right for a person subject to pre-trial detention to challenge the legality of this deprivation of liberty. This right should be exercisable at any time and a person subject to pre-trial detention should be brought before the court determining the matter. This court should have the authority to order the person's release with immediate effect where the deprivation of liberty is unlawful. Furthermore, the court should take particular care to see whether the person concerned has been ill-treated. Where this appears to have occurred, the court shall require this issue to be independently investigated.

There should be continued monitoring of the length of pre-trial detention in specific cases in order to ensure that it does not breach international standards. Consideration should be given to setting a legally binding deadline consistent with those standards so that a prosecution must be discontinued if it is breached.

The criminal procedure law and the regulations governing all places of detention should, where they do not already do so, recognize the right of a person in pre-trial detention to meet and communicate with a lawyer. Appropriate facilities for such meetings shall be provided in places of detention. This right should arise once pre-trial detention begins. Its exercise should be subject to the minimum regulation required by the place of detention. Where a detained person cannot afford a lawyer, the cost should be met out of public funds. Any lawyer so funded should have the necessary competence, independence and willingness to represent the interests of the detained person.

The criminal procedure law should, where it does not do so already, recognize a right for all persons subject to pre-trial detention to make direct contact with their families and other persons interested in their whereabouts. This right should be exercisable upon being deprived of their liberty and whenever there is a change in the place of detention.

Persons subject to pre-trial detention should only be held in places organized and equipped in a manner consistent with the presumption of innocence applicable to them. Juveniles should be kept in places used exclusively for them and where particular account of their needs is taken. It should be ensured that in all places of detention there is a proper record of admission and release.

Particular safeguards should be adopted, if they do not already exist, to ensure that persons in pre-trial detention are not subjected to torture or other cruel, inhuman or degrading treatment. These should include effective supervision of any interrogation and the exclusion from use in any proceedings against the suspect of any statement obtained through the use of such treatment. All allegations regarding such treatment shall be promptly investigated by persons independent of the detaining authorities.

Independent prison inspection agencies, where these do not already exist, should be established. These agencies should have full authority to visit any place of detention without being hindered by its staff. They should be able to carry out investigations in response to communications from prisoners, their lawyers and other interested persons, as well as of their own motion. The reports of these bodies should be published and acted upon by the authorities responsible for places of detention.

The specific application of international standards concerning pre-trial detention should be fully integrated into the training and continuing education of judges, law enforcement officials and staff working in places of detention.


Notes

1 Document of the Copenhagen Meeting (paragraph 5.15), Document of the Moscow Meeting (paragraph 23.1(iv)); Article 9(3) ICCPR, Article 5(3) ECHR, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (rule 10.2), the Body of Principles (principles 11(1) and 37(1)) and the Eighth United Nations Congress on The Prevention of Crime And The Treatment of Offenders (resolution 17(2)(a)).

2 This is underlined by the stipulation in the Document of the Copenhagen Meeting (paragraph 5.15), Document of the Moscow Meeting (paragraph 23.1), Article 9(3) ICCPR, Article 5(3) ECHR, United Nations Standard Minimum Rules for the Administration of Juvenile Justice (rule 10.2), and Body of Principles (principle 37).

3 See Document of the Moscow Meeting (paragraph 23(1)(i)), Article 9(1) ICCPR, Article 5 (1) ECHR, the Convention on the Rights of the Child (Article 37(b)) and the Body of Principles (principle 2).

4 See Document of the Moscow Meeting (paragraph 23.1) and Article 9(1) ICCPR.

5 See Concluding Document of Vienna (paragraph 23.1), the Charter of Paris, Universal Declaration of Human Rights (Article 9), Article 9 (1) ICCPR and the Convention on the Rights of the Child (Article 37 (b)).

6 in international case law and by the Eighth United Nations Congress on The Prevention of Crime And The Treatment of Offenders (resolution 17(2)(b)).

7 Although the Eighth United Nations Congress on The Prevention of Crime And The Treatment of Offenders (resolution 17(2)(j)) recognized that it is appropriate to deduct time spent in pre-trial detention from any sentence of imprisonment, this is not a justification for its continuation.

8 ICCPR (Article 9(4)), ECHR (Article 5(4)), the Convention on the Rights of the Child (Article 37(d)) and the Body of Principles (principle 32(1)).

9 Stipulated in the Document of the Copenhagen Meeting (paragraph 11) and the Charter of Paris as well as in the ICCPR (Article 2(3)) and the ECHR (Article 13)

10 This is required by the ICCPR (Articles 9(2) and 14(3)(a)), the ECHR (Articles 5(2) and 6(3)(a)) and the Body of Principles (principle 11(2)).

11 See Document of the Copenhagen Meeting (paragraph 5.17), the Document of the Moscow Meeting (paragraph 23.1 (v)), ICCPR (Article 14 (3) (d)) and ECHR (Article 6 (3) (c)).

12 See Document of the Copenhagen Meeting (paragraph 11.1), the Body of Principles (principle 17) and the United Nations Rules For The Protection of Juveniles Deprived of Their Liberty (rule 18).

13 Standard Minimum Rules for the Treatment of Prisoners (rule 93), Body of Principles (principle 18) and the United Nations Rules For The Protection of Juveniles Deprived of Their Liberty (rule 18).

14 See Document of the Moscow Meeting (paragraph 23 (vi)), Standard Minimum Rules (rule 29), European Prison Rules (rule 92) and the Body of Principles (principles 15 and 16).

15 This has been recognized in the elaboration provided by the Standard Minimum Rules (rule 7), the European Prison Rules (rule 7), the Body of Principles (principle 12) and the Declaration on the Protection of All Persons From Enforced Disappearance (Article 10 (4)).

16 See ICCPR (Article 7) and ECHR (Article 3).

17 This has been expressly recognized in the Concluding Document of Vienna (paragraph 23.2), Document of the Moscow Meeting (paragraph 23), ICCPR (Article 10), the Convention on the Rights of the Child (Article 37 (c)) and the Body of Principles (principle 1).

18 Recognized in Document of the Copenhagen Meeting (paragraph 5.19), Universal Declaration of Human Rights (Article 11), ICCPR (Article 14 (2)) and ECHR (Articles 6 (2), 7).

19 These requirements are reiterated in the Convention on the Rights of the Child (Article 37(c)), the Standard Minimum Rules (rules 8 and 85), the European Prison Rules (rules 11 (3), (4) and 13), the Body of Principles (principle 8), United Nations Standard Minimum Rules for the Administration of Juvenile Justice (rule 13.4) and United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (rule 17).

20 See UN Standard Minimum Rules for the Treatment of Prisoners (rules 86-90, 95) and European Prison Rules (rule 84, 95-98).

21 This is recognized in principle by the Convention on the Rights of the Child (Article 37(c)), the Standard Minimum Rules (rule 8) and the European Prison Rules (rule 11).

22 The Document of the Copenhagen Meeting (paragraph 11), the Charter of Paris, the ICCPR (Article 2(3)) and the ECHR (Article 13).

23 Standard Minimum Rules (rule 35), the European Prison Rules (rule 41), the Body of Principles (principle 13) and the Eighth United Nations Congress on The Prevention of Crime And The Treatment of Offenders (resolution 17(2)(g)).

24 See the Document of the Moscow Meeting (paragraph 23.1 (ix) and (x)), rule 36 of the Standard Minimum Rules, rule 42 of the European Prison Rules and the Body of Principles (principles 7(1) and 33).

25 Such a body is required by the Standard Minimum Rules (rule 55), the European Prison Rules (rule 1(4) and (5)) and the Body of Principles (principle 29).

26 This is specifically recognized by the Declaration on the Protection of All Persons from Enforced Disappearance (Article 9(2)) in respect of allegations about disappearance but it is a requirement of general application.

Annex

A. OSCE Commitments (contents)

B. Treaty Commitments (contents)

C. Other commitments and elaborations (contents)


A. OSCE Commitments

FINAL ACT OF THE CONFERENCE ON SECURITY AND CO-OPERATION IN EUROPE (HELSINKI FINAL ACT), 1975

In the field of human rights and fundamental freedoms, the participating States will act in conformity with the purposes and principles of the Charter of the United Nations and with the Universal Declaration of Human Rights. They will also fulfil their obligations as set forth in the international declarations and agreements in this field, including inter alia the International Covenants on Human Rights, by which they may be bound.


CONCLUDING DOCUMENT OF VIENNA, THE THIRD FOLLOW-UP MEETING, 1989
(23)The participating States will
(23.1)-ensure that no one will be subjected to arbitrary arrest, detention or exile;
(23.2)-ensure that no one will be subjected to arbitrary arrest, detention or exile;
(23.2)-ensure that all individuals in detention or incarceration will be treated with humanity and with respect for the inherent dignity of the human person;
(23.3)-observe the United Nations Standard Minimum Rules for the Treatment of Prisoners as well as the United Nations Code of Conduct for Law Enforcement Officials;

DOCUMENT OF THE COPENHAGEN MEETING OF THE CONFERENCE ON THE HUMAN DIMENSION OF THE CSCE, 1990
5.15-any person arrested or detained on a criminal charge will have the right, so that the lawfulness of his arrest or detention can be decided, to be brought promptly before a judge or other officer authorized by law to exercise this function;
5.17-any person prosecuted will have the right to defend himself in person or through prompt legal assistance of his own choosing or, if he does not have sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
5.19-everyone will be presumed innocent until proved guilty according to law;
11.The participating States further affirm that, where violations of human rights and fundamental freedoms are alleged to have occurred, the effective remedies available include
11.1-the right of the individual to seek and receive adequate legal assistance
(...)

CHARTER OF PARIS FOR A NEW EUROPE CSCE SUMMIT, 1990

no one will be:

subject to arbitrary arrest or detention,

We will ensure that everyone will enjoy recourse to effective remedies, national or international, against any violation of his rights (...)

DOCUMENT OF THE MOSCOW MEETING OF THE CONFERENCE ON THE HUMAN DIMENSION OF THE CSCE, 1991
(23)The participating States will treat all persons deprived of their liberty with humanity and with respect for the inherent dignity of the human person and will respect the internationally recognized standards that relate to the administration of justice and the human rights of detainees.
(23.1)The participating States will ensure that

(i) no one will be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law;

(ii) anyone who is arrested will be informed promptly in a language which he understoands of the reason for his arrest, and will be informed of any charges against him;

(iii) any person who has been depreived of his liberty will be promptly informed about his rights according to domestic law

(iv) any person arrested or detained will have the right to be brought promptly before a judge or other officer authorized by law to determine the lawfulness of his arrest or detention, and will be released without delay if it is unlawful;

(v) anyone charged with a criminal offence will have the right to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(vi) any person arrested or detained will have the right, without undue delay, to notify or require the competent authority to notify appropriate persons of his choice of his arrest, detention, imprisonment and whereabouts; any restriction in the exercise of this right will be prescribed by law and in accordance with international standards;

(vii) effective measures will be adopted, if this has not already been done, to provide that law enforcement bodies do not take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, or otherwise to incriminate himself, or to force him to testify against any other person;

(viii) the duration of any interrogation and the intervals between them will be recorded and certified, consistent with domestic law;

(ix) a detained person or his counsel will have the right to make a request or complaint regarding his treatment, in particular when torture or other cruel, inhuman or degrading treatment has been applied, to the authorities responsible for the administration of the place of detention and to higher authorities, and when necessary, to appropriate authorities vested with reviewing or remedial power;

(x) such request or complaint will be promptly dealt with and replied to without undue delay; if the request is rejected or in case of inordinate delay, the complainant will be entitled to bring it before a judicial or other authority; neither the detained or imprisoned person nor any complainant will suffer prejudice for making a request or complaint;

(23.2)The participating States will

(i) endeavour to take measures, as necessary, to improve the conditions of individuals in detention or imprisonment;

(ii) pay particular attention to the question of alternatives to imprisonment.


B. Treaty commitments

EUROPEAN CONVENTION ON HUMAN RIGHTS, 1950
3.No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
5.(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

6.(2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law;

(3) Everyone charged with a criminal offence has the following minimum rights:

a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

b. to have adequate time and facilities for the preparation of his defence;

c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;


VIENNA CONVENTION ON CONSULAR RELATIONS, 1963
36.(1) With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.


INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 1966
7.No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
9.(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such proce dure as are established by law.

(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

(3) Everyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should, occasion arise, for execution of the judgement.

(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

10.(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

(2) (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.

14.(1) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law;

(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) to be informed promptly and in a language which he understands of the nature and the cause of the charge against him;

(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;


CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, 1987
2.1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or threat of war, internal and political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

4.1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

15. Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

CONVENTION ON THE RIGHTS OF THE CHILD, 1989
37.States Parties shall ensure that:

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child?s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;

(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.


C. Other commitments and elaborations

UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948
3.Everyone has the right to life, liberty and security of person.
8.Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or law.
9.No one shall be subjected to arbitrary arrest, detention or exile.
11.(1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

UNITED NATIONS STANDARD MINIMUM RULES FOR THE TREATMENT OF PRISONERS, 1955 and 1977
7.(1) In every place where persons are imprisoned there shall be kept a bound registration book with numbered pages in which shall be entered in respect of each prisoner received:

(a) Information concerning his identity;

(b) The reasons for his commitment and the authority therefor;

(c) The day and hour of his admission and release.

(2) No person shall be received in an institution without a valid commitment order of which the details shall have been previously entered in the register.

8.The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,

(b) Untried prisoners shall be kep separate from convicted prisoners;

(c) Young prisoners shall be kept separate from adults.

35.(1) Every prisoner on admission shall be provided with written information about the regulations governing the treatment of prisoners of his category, the disciplinary requirements of the institution, the authorized methods of seeking information and making complaints, and all such other matters as are necessary to enable him to understand both his rights and his obligations and to adapt himself to the life of the institution.

(2) If a prisoner is illiterate, the aforesaid information shall be conveyed to him orally.

36.(1) Every prisoner shall have the opportunity each week day of making requests or complaints to the director of the institution or the officer authorized to represent him.

(2) It shall be possible to make requests or complaints to the inspector of prisons during his inspection. The prisoner shall have the opportunity to talk to the inspector or to any other inspecting officer without the director or other members of the staff being present.

(3) every prisoner shall be allowed to make a request or complaint, without censorship as to substance but in proper form, to the central prison administration, the judicial authority or other proper authorities through approved channels.

(4) Unless it is evidently frivolous or groundless, every request or complaint shall be promptly dealt with and replied to without undue delay.

38.(1) Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State to which they belong.

(2) Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.

55.There shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority. Their task shall be in particular to ensure that these institutions are administered in accordance with existing laws and regulations and with a view to bringing about the objectives of penal and correctional services.
84.(2) Unconvicted prisoners are presumed to be innocent and shall be treated as such.
85.(1) Untried prisoners shall be kept separate from convicted prisoners.

(2) Young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions.

86.Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.
87.Within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or though their family or friends. Otherwise the administration shall provide their food.
88.(1) An untried prisoner shall be allowed to wear his own clothing if it is clean and suitable.

(2) If he wears prison dress, it shall be different from that supplied to convicted prisoners.

89.An untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.
90.An untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.
91.An untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred.
92.An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.
93.For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.

UNITED NATIONS STANDARD MINIMUM RULES FOR THE ADMINISTRATION OF JUVENILE JUSTICE (BEIJING RULES), 1985
10.1Upon the apprehension of a juvenile, her or his parents or guardian shall be immediately notified of such apprehension, and, where such immediate notification is not possible, the parents or guardian shall be notified within the shortest possible time thereafter.
10.2A judge or other competent official or body shall, without delay, consider the issue of release.
13.1Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time.
13.2Wherever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.
13.3Juveniles under detention pending trial shall be entitled to all rights and guarantees of the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations.
13.4Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.
13.5While in custody, juveniles shall receive care, protection and all necessary individual assistance - social, educational, vocational, psychological, medical and physical - that they may require in view of their age, sex and personality.

THE COUNCIL OF EUROPE'S EUROPEAN PRISON RULES, 1977
1.4. There shall be regular inspections of penal institutions and services by qualified and experienced inspectors appointed by a competent authority. Their task shall be, in particular to monitor whether and to what extent these institutions are administered in accordance with existing laws and regulations, the objectives of the prison services and the requirements of these rules.

5. The protection of the individual rights of prisoners with special regard to the legality of the execution of detention measures shall be secured by means of a control carried out, according to national rules, by a judicial authority or other duly constituted body authorised to visit the prisoners and not belonging to the prison administration.

7.1. No person shall be received in an institution without a valid commitment order.

2. The essential details of the commitment and reception shall immediately be recorded.

11.1. In allocating prisoners to different institutions or regimes, due account shall be taken of their judicial and legal situation (untried or convicted prisoner ... ), of the special requirements of their treatment, of their medical needs, their sex and age.

3. In principle, untried prisoners shall be detained separately from con- victed prisoners unless they consent to being accommodated or involved together in organised activities beneficial to them.

4. Young prisoners shall be detained under conditions which as far as possible protect them from harmful influences and which take account of the needs peculiar to their age.

13.So far as possible separate institutions or separate sections of an institution shall be used to facilitate the management of different treatment regimes or the allocation of specific categories of prisoners.
29.The medical officer shall see and examine every prisoner as soon as possible after admission and thereafter as necessary, with a particular view to the discovery of physical or mental illness and the taking all measures necessary for medical treatment ...
41.1. Every prisoner shall on admission be provided with written information about the regulations governing the treatment of prisoners of the relevant category, the disciplinary requirements of the institution, the authorised methods of seeking information and making complaints, and all such other matters as are necessary to understand the rights and obligations of prisoners and to adapt to the life of the institution.

2. If a prisoner cannot understand the written information provided, the information shall be explained orally.

42.1. Every prisoner shall have the opportunity every day of making requests or complaints to the director of the institution or the officer authorised to act in that capacity.

2. A prisoner shall have the opportunity to talk to, or to make requests or complaints to, an inspector of prisons or to any other duly constituted authority entitled to visit the prison without the director or other members of the staff being present. However, appeals against formal decisions may be restricted to the authorised procedures.

3. Every prisoner shall be allowed to make a request or complaint, under confidential cover, to the central prison administration, the judicial authority or other proper authorities.

4. Every request or complaint addressed or referred to a prison authority shall be promptly dealt with and replied to by this authority without undue delay.

90.Prison administration should be guided by the provisions of the rules as a whole so far as they can appropriately and in practice be applied for the benefit of those special categories of prisoners for which additional rules are provided hereafter.
91.Without prejudice to legal rules for the protection of individual liberty or prescribing the procedure to be observed in respect of untried prisoners, these prisoners, who are presumed to be innocent until they are found guilty, shall be afforded the benefits that may derive from Rule 90 and treated without restrictions other than those necessary for the penal procedure and security of the institution.
92.1. Untried prisoners shall be allowed to inform their families of their detention immediately and given all reasonable facilities for communication with family and friends and persons with whom it is in their legitimate interest to enter into contact;

2. They shall also be allowed to receive visits from them under humane conditions subject only to such restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution.

3. If an untried prisoner does not wish to inform any of these persons, the prison administration should not do so on its own initiative unless there are good overriding reasons as, for instance, the age, state of mind or any other incapacity of the prisoner.

93.Untried prisoners shall be entitled, as soon as imprisoned, to choose a legal representative, or shall be allowed to apply for free legal aid where such aid is available and to receive visits from that legal adviser with a view to their defence and to prepare and hand to the legal adviser, and to receive, confidential instructions. On request, they shall be given all necessary facilities for this purpose. In particular, they shall be given the free assistance of an interpreter for all essential contacts with the administration and for their defence. Interviews between prisoners and their legal advisers may be within sight but not within hearing, either direct or indirect, of the police or institution staff. The allocation of untried prisoners shall be in conformity with the provision of Rule 11, paragraph 3.
94.Except where there are circumstances that make it undesirable, untried prisoners shall be given the opportunity of having separate rooms.
95.1. Untried prisoners shall be given the opportunity of wearing their own clothing if it is clean and suitable.

3. If they have no suitable clothing of their own, untried prisoners shall be provided with civilian clothing in good condition in which to appear in court or on authorised outings.

96.Untried prisoners shall, wherever possible, be offered the opportunity to work but shall not be required to work. Those who choose to work shall be paid as other prisoners. If educational or trade training is available untried prisoners shall be encouraged to avail themselves of these opportunities. 97. Untried prisoners shall be allowed to procure at their own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution.
98.Untried prisoners shall be given the opportunity of being visited and treated by their own doctor or dentist if there is reasonable ground for the application. Reasons should be given if the application is refused. Such costs as are incurred shall not be the responsibility of the prison administration.

BODY OF PRINCIPLES FOR THE PROTECTION OF ALL PERSONS UNDER ANY FORM OF DETENTION OR IMPRISONMENT, 1988
4.Any form of detention or imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to the effective control of, a judicial or other authority.
7.1. States should prohibit by law any act contrary to the rights and duties contained in these principles, make any such act subject to appropriate sanctions and conduct impartial investigations upon complaints.

2. Officials who have reason to believe that a violation of this Body of Principles has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities vested with reviewing or remedial powers.

3. Any other person who has ground to believe that a violation of this Body of Principles has occurred or is about to occur shall have the right to report the matter to the superiors of the officials involved as well as to other appropriate authorities or organs vested with reviewing or remedial powers.

8.Persons in detention shall be subject to treatment appropriate to their unconvicted status. Accordingly, they shall, wherever possible, be kept separate from imprisoned persons.
9.The authorities which arrest a person, keep him under detention or investigate the case shall exercise only the powers granted to them under the law and the exercise of these powers shall be subject to recourse to a judicial or other authority.
10.Anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him.
11.(1) A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority. A de- tained person shall have the right to defend himself or to be assisted by counsel as prescribed by law.

(2) A detained person and his counsel, if any, shall receive prompt and full communication of any order of detention, together with the reasons therefor.

(3) A judicial or other authority shall be empowered to review as appropriate the continuance of detention.

12.(1) There shall be duly recorded:

(a) the reasons for the arrest;

(b) the time of the arrest and the taking of the arrested person to a place of custody as well as that of his first appearance before a judicial or other authority;

(c) the identity of the law enforcement officials concerned;

(d) precise information concerning the place of custody.

(2) Such records shall be communicated to the detained person, or his counsel, if any, in the form prescribed by law.

13.Any person shall, at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter, be provided by the authority responsible for his arrest, detention or imprisonment, respectively with information on an explanation of his rights and how to avail himself of such rights.
14.A person who does not adequately understand or speak the language used by the authorities responsible for his arrest, detention or imprisonment is entitled to receive promptly in a language which he understands the information referred to in principle 10, principle 11, paragraph 2, principle 12, paragraph 1, and principle 13 and to have the assistance, free of charge, if necessary, of an interpreter in connection with legal proceedings subsequent to his arrest.
15.Notwithstanding the exceptions contained in principle 16, paragraph 4, and principle 18, paragraph 3, communication of the detained or imprisoned person with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days.
16.(1) Promptly after arrest and after each transfer from one place of detention or imprisonment to another, a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment or of the transfer and of the place where he is kept in custody.

(2) If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization.

(3) If a detained or imprisoned person is a juvenile or is incapable of understanding his entitlement, the competent authority shall on its own initiative undertake the notification referred to in the present principle. Special attention shall be given to notifying parents or guardians.

(4) Any notification referred to in the present principle shall be made or permitted to be made without delay. The competent authority may how ever delay a notification for a reasonable period where exceptional needs of the investigation so require.

17.(1) A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.

(2) If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay.

18.(1) A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.

(2) A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel.

(3) The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.

(4) Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.

(5) Communications between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime.

19.A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.
20.If a detained or imprisoned person so requests, he shall if possible be kept in a place of detention or imprisonment reasonably near his usual place of residence.
21.(1) It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person.

(2) No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgement.

23.(1) The duration of any interrogation of a detained or imprisoned person and of the intervals between interrogations as well as the identity of the officials who conducted the interrogations and other persons present shall be recorded and certified in such form as may be prescribed by law.

(2) A detained or imprisoned person, or his counsel when provided by law, shall have access to the information described in paragraph 1 of the present principle.

24.A proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge.
25.A detained or imprisoned person or his counsel shall, subject only to reasonable conditions to ensure security and good order in the place of detention or imprisonment, have the right to request or petition a judicial or other authority for a second medical examination or opinion.
26.The fact that a detained or imprisoned person underwent a medical examination, the name of the physician and the results of such an examination shall be duly recorded. Access to such records shall be ensured. Modalities therefore shall be in accordance with relevant rules of domestic law.
27.Non-compliance with these principles in obtaining evidence shall be taken into account in determining the admissibility of such evidence against a detained or imprisoned person.
29.(1) In order to supervise the strict observance of relevant laws and regulations, places of detention shall be visited regularly by qualified and experienced persons appointed by, and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment.

(2) A detained or imprisoned person shall have the right to communicate freely and in full confidentiality with the persons who visit the places of detention or imprisonment in accordance with paragraph 1 of the present principle, subject to reasonable conditions to ensure security and good order in such places.

32.(1) A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.

(2) The proceedings ... shall be simple and expeditious and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.

33.(1) A detained or imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment, in particular in case of torture or other cruel, inhuman or degrading treatment, to the authorities responsible for the administration of the place of detention and to higher authorities and, when necessary, to appropriate authorities vested with reviewing or remedial power;

(2) In those cases where neither the detained or imprisoned person nor his counsel has the possibility to exercise his rights under paragraph 1 of the present principle, a member of the family of the detained or imprisoned person or any other person who has knowledge of the case may exercise such rights.

(3) Confidentiality concerning the request or complaint shall be maintained if so requested by the complainant.

(4) Every request or complaint shall be promptly dealt with and replied to without undue delay. If the request or complaint is rejected or, in case of inordinate delay, the complainant shall be entitled to bring it before a judicial or other authority. Neither the detained or imprisoned person nor any complainant under paragraph 1 of the present principle shall suffer prejudice for making a request or complaint.

36.(1) A detained person suspected of or charged with a criminal offence shall be presumed innocent and shall be treated as such until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

(2) The arrest or detention of such a person pending investigation and trial shall be carried out only for the purpose of the administration of justice on grounds and under conditions and procedures specified by law. The imposition of restrictions upon such a person which are not strictly required for the purpose of the detention or to prevent hindrance to the process of investigation or the administration of justice, or for the maintenance of security and good order in the place of detention shall be forbidden.

37.A person detained on a criminal charge shall be brought before a judicial or other authority provided by law promptly after his arrest. Such authority shall decide without delay upon the lawfulness and necessity of detention. No person may be kept under detention pending investigation or trial except upon the written order of such an authority. A detained person shall, when brought before such an authority, have the right to make a statement on the treatment received by him while in custody.
38.A person detained on a criminal charge shall be entitled to trial within a reasonable time or to release pending trial.
39.Except in special cases provided for by law, a person detained on a criminal charge shall be entitled, unless a judicial or other authority decides otherwise in the interest of the administration of justice, to release pending trial subject to the conditions that may be imposed in accordance with the law. Such authority shall keep the necessity of detention under review.

EIGHTH UNITED NATIONS CONGRESS ON THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS, 1990

Resolution 17

2.(a) Persons suspected of having committed offences and deprived of their liberty should be brought promptly before a judge or other officer authorized by law to exercise judicial functions who should hear them and take a decision concerning pre-trial detention without delay;

(b) Pre-trial detention may be ordered only if there are reasonable grounds to believe that the persons concerned have been involved in the commission of the alleged offences and there is a danger of their absconding or committing further serious offences, or a danger that the course of justice will be seriously interfered with if they are left free;

(c) In considering whether pre-trial detention should be ordered, account should be taken of the circumstances of the individual case, in particular the nature and seriousness of the alleged offence, the strength of the evidence, the penalty likely to be incurred, and the conduct and personal and social circumstances of the person concerned, including his or her community ties;

(d) Pre-trial detention should not be ordered if the deprivation of liberty would be disproportionate in relation to the alleged offence and the ex- pected sentence;

(e) Whenever possible, the use of pre-trial detention should be avoided by imposing alternative measures, such as release on bail or personal recognizance, or also, in the case of juveniles, close supervision, intensive care or placement with a family or in an educational setting or home; reasons should be provided if such alternatives cannot be applied;

(f) If the use of pre-trial detention for juveniles cannot be avoided, they should receive care, protection and all the necessary individual assistance that they may require in view of their age;

(g) Persons for whom pre-trial detention is ordered should be informed of their rights, in particular:

(i) The right to be assisted promptly by legal counsel;

(ii) The right to request legal aid;

(iii) The right to have the validity of the detention determined by way of habeas corpus, amparo or other means, and to be released if the detention is not lawful;

(iv) The right to be visited by and correspond with members of their families, subject to reasonable conditions and restrictions as specified by law or lawful regulations;

(h) Pre-trial detention should be subject to judicial review at reasonably short intervals and should not be continued beyond that which is required in the light of the above-listed principles;

(i) All proceedings concerning persons in custody should be conducted as expeditiously as possible so as to reduce the period of pre-trial detention to the minimum;

(j) In the determination of the sentence, the period spent in pre-trial detention should either be deducted from the length of the sentence or be considered with a view to reducing the length of the sentence.

Resolution 26

When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect?s human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.


UNITED NATIONS RULES FOR THE PROTECTION OF JUVENILES DEPRIVED OF THEIR LIBERTY, 1990
17.Juveniles who are detained under arrest or awaiting trial (?untried?) are presumed innocent and shall be treated as such. Detention before trial shall be avoided to the extent possible and limited to exceptional circumstances. Therefore, all efforts shall be made to apply alternative measures. When preventive detention is nonetheless used, juvenile courts and investigative bodies shall give the highest priority to the most expeditious processing of such cases to ensure the shortest possible duration of detention. Untried detainees should be separated from convicted juveniles.
18.The conditions under which an untried juvenile is detained should be consistent with the rules set out below, with additional specific provisions as are necessary and appropriate, given the requirements of the presumption of innocence, the duration of the detention and the legal status and circumstances of the juvenile. These provisions would include, but not necessarily be restricted to, the following:

(a) Juveniles should have the right of legal counsel and be enabled to apply for free legal aid, where such aid is available, and to communicate regularly with their legal advisers. Privacy and confidentiality shall be ensured for such communications;

(b) Juveniles should be provided, where possible, with opportunities to pursue work, with remuneration, and continue education or training, but should not be required to do so. Work, education or training should not cause the continuance of the detention;

(c) Juveniles should receive and retain materials for their leisure and recreation as are compatible with the interests of the administration of justice.


UNITED NATIONS STANDARD MINIMUM RULES FOR NON-CUSTODIAL MEASURES (TOKYO RULES), 1990
2.(3) In order to provide greater flexibility consistent with the nature and gravity of the offence, with the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment, the criminal justice system should provide a wide range of non-custodial measures, from pre-trial to post-sentencing dispositions. The number and types of non-custodial measures available should be deter- mined in such a way that consistent sentencing remains possible.
3.(4) Non-custodial treatment imposing an obligation on the offender, applied before or instead of formal proceedings or trial, shall require the offender's consent.
6.(1) Pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.

(2) Alternatives to pre-trial detention shall be employed at as early a stage as possible. Pre-trial detention shall last no longer than necessary to achieve the objectives stated under rule 6.1 and shall be administered humanely and with respect for the inherent dignity of human beings.

(3) The offender shall have the right to appeal to a judicial or other competent independent authority in cases where pre-trial detention is employed.


DECLARATION ON THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCE, 1992
7.No circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances.
9.(1) The right to a prompt and effective remedy as a means of determining the whereabouts or state of health of persons deprived of their liberty and/ or identifying the authority ordering or carrying out the deprivation of liberty is required to prevent enforced disappearances under all circumstances, including those referred to in article 7 above.

(2) In such proceedings, competent national authorities shall have access to all places where persons deprived of their liberty are being held and to each part of those places, as well as to any place in which there are grounds to believe that such persons may be found.

(3) Any other competent authority entitled under the law of the State or by any international legal instrument to which the State is party may also have access to such places.

10.(1) Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention.

(2) Accurate information on the detention of such persons and their place or places of detention, including transfers, shall be made promptly available to their family members, their counsel or to any other persons having a legitimate interest in the information unless a wish to the contrary has been manifested by the persons concerned.

(3) An official up-to-date register of all persons deprived of their liberty shall be maintained in every place of detention. Additionally, each State shall take steps to maintain similar centralized registers. The information contained in these registers shall be made available to the persons mentioned in the preceding paragraph, to any judicial or other competent independent national authority and to any other competent authority entitled under the law of the State concerned or any international legal instrument to which a State concerned is a party, seeking to trace the whereabouts of a detained person.

11.All persons deprived of their liberty must be released in a manner permitting reliable verification that they have actually been released and further, have been released in conditions in which their physical integrity and ability fully to exercise their rights are assured.

GENERAL COMMENTS OF THE UN HUMAN RIGHTS COMMITTEE

General Comment 7, Article 7
1.... Complaints about ill-treatment must be investigated effectively by competent authorities. Those found guilty must be held responsible, and the alleged victims must themselves have effective remedies at their disposal, including the right to obtain compensation ...

General Comment 8, Article 9

2.Paragraph 3 of article 9 requires that in criminal cases any person arrested or detained has to be brought ?promptly? before a judge or other officer authorized by law to exercise judicial power. More precise time-limits are fixed by law in most States parties and, in the view of the Committee, delays must not exceed a few days....
3.Another matter is the total length of detention pending trial. In certain categories of criminal cases in some countries this matter has caused some concern with the Committee, and members have questioned whether their practices have been in conformity with the entitlement ?to trial within a reasonable time or to release? under paragraph 3. Pre-trial detention should be an exception and as short as possible. The Committee would welcome information concerning mechanisms existing and measures taken with a view to reducing the duration of such detention.

General Comment 9(2), Article 10

Subparagraph 2(b) calls, inter alia, for accused juvenile persons to be separated from adults. The information in reports shows that a number of States are not taking sufficient account of the fact that this is an unconditional requirement of the Covenant. It is the Committee's opinion that, as is clear from the text of the Covenant, deviation from States parties' obligations under subparagraph 2(b) cannot be justified by any consideration whatsoever.