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ORGANISATION OF AMERICAN STATESORGANISATION OF AMERICAN STATES

Second Meeting of Officials ResponsibleSecond Meeting of Officials Responsiblefor Penitentiary and Prison Policiesfor Penitentiary and Prison Policies

Implementation of Preventive DetentionImplementation of Preventive DetentionAndy Barclay

Projects Director, ICPS

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Established in the School of Law in April 1997Established in the School of Law in April 1997

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ICPS AimsICPS Aims

• To develop a body of knowledge, based on international covenants and instruments, about the principles on which the use of imprisonment should be based, which can be used as a sound foundation for policies on prison issues.

• To build up a resource network for the spread of best practice in prison management worldwide to which prison administrators can turn for practical advice on how to manage prison systems which are just, decent, humane and cost effective.

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ObjectivesObjectives

• To carry out, organise and publish research into the purposes of imprisonment and make this available to policy makers, practitioners, administrators, the media and the general public.

• To undertake practical prison projects, which take account of the cultural, social and financial realities in the countries involved, at the request of international agencies, national governments and non-governmental organisations.

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Key ICPS PublicationsKey ICPS Publications

• A Human Rights Approach to Prison Management: Handbook for Prison Staff

• Guidance Notes on Prison Reform

• World Prison Brief

Available as a download from http://www.kcl.ac.uk/law/research/icps

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ICPS Projects in Latin AmericaICPS Projects in Latin America• "Human Rights & Strategic Planning in the Gendarmeria

de Chile", 2001 –2005.

• “Improvement in Prison Management Project in Brazil” – Ministry of Justice and the States of Sao Paulo, Espirito Santo, & Rondonia, 2002 – 2006.

• Management Training Courses in Venezuela, 2000.• “Implementation of UN OPCAT and independent prison

monitoring as vehicles for the prevention of torture and for prison reform in Argentina”, 2007 – 2010.

• Launches of ICPS Publications in Colombia (2004), Guatemala (2006) & the Dominican Republic (2006)

• Visits to, and conference presentations in a number of countries in the Americas including the ILANUD International Training Courses in Costa Rica.

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Preventative or Pre Trial DetentionPreventative or Pre Trial Detention

• Investigation

• Awaiting Trial

• Trial

• Convicted but Unsentenced

• Awaiting Final Sentence

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World Pre Trial/Remand Prison List World Pre Trial/Remand Prison List (Dec 2007)(Dec 2007)

• 2.5 million estimated to be held pre trial

• In most countries pre trials = >10%<40% prisoners

• In most countries pre trials < 40 per 100000

• In Americas 80% countries exceed that level

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Pre-trial detainees/remand prisonersPre-trial detainees/remand prisoners(percentage within the prison population)(percentage within the prison population)

Caribbean South America Central America North America

H aiti 83.4% Bolivia 75.0% H onduras 63.5% C anada 33.7%

D om in ican R epublic c.63% Paraguay 68.2% Panam a 61.7% U SA 21.0%

Baham as c.43% Peru 66.4% G uatem ala 43.0% Berm uda (U K) 9.6%

N etherlands Antilles c.38% U ruguay 63.1% M exico 40.9% G reenland (D enm ark) 8.0%

Antigua & Barbuda 34.2% Ecuador 63.0% El Sa lvador 32.6%

St. Lucia 33.0% Venezuela 55.3% C osta R ica 22.8%

Anguilla (U K) 30.9% Surinam e c.55% Belize 21.7%

St. K itts & N evis 29.7% Argentina 53.8% N icaragua 21.4%

Barbados 29.6% G uyana 40.8%

St. V incent & theG renadines

21.8% C olom bia 35.0%

C aym an Islands (U K) 21.6% Brazil 34.8%

D om in ica 18.5% C hile 23.0%

G renada 17.3%

Aruba (N etherlands) 16.6%

Trin idad & Tobago 16.5%

Puerto R ico (U SA) 15.7% Last M odified 06 D ec 2007

Jam aica 15.0% Copyright 2008 K ing's College London

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Prison growth ratesPrison growth rates1999-20041999-2004

• Africa: 61%

• Americas: 71%

• Asia: 90%

• Europe: 66%

• Oceania: 69%

Source: World Prison Brief, International Centre for Prison Studies

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Presumption of InnocencePresumption of Innocence

Article 11 (1) of the Universal Declaration of Human Rights:

“Everyone charged with a penal offence has the right to be assumed innocent until proved guilty.”

i.e. all processes which affect pre-trial detainees should be shaped within the framework of “the presumption of innocence”.

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Why Pre-Trial Detention?Why Pre-Trial Detention?Rule 6.1 of the UN Minimum Rules for Non-Custodial Measures:

“Pre Trial detention shall be used as 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.”

•There should be a presumption in the legislation and in the courts in favour of not holding suspects in Pre-Trial Detention.

•There should be effective legislation, systems and structures for bail which have the confidence of the courts and the public.

•Use of “Electronic Tagging”.

•Prohibiting pre-trial detention for less serious crimes.

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Bail Information Programmes Bail Information Programmes in Prisonsin Prisons

• Courts require accurate information before granting bail to pre-trial detainees.

• Trained prison staff and/or NGO staff can provide that information to the courts.

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““Justice Delayed is Justice Denied”Justice Delayed is Justice Denied”

Excessive Length of Pre-Trial Detention is a major problem in many jurisdictions, creating prison overcrowding, feelings of injustice, and tension with potential of disorder.

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Reducing Length of Pre-Trial DetentionReducing Length of Pre-Trial Detention

• Major systemic and legislative Judicial Reform, eg, Chile.• Imposing time limits for investigation, and for the case to come

to trial.• Improving the management of the courts’ caseloads.• Greater collaboration and improved IT communication systems

between Prosecutors, Lawyers, Courts and Prisons in exchanging information to ensure legitimacy and necessity of Pre-Trial Detention, and speed up the Trial process.

• A prison management system to review legitimacy of pre-trial detention, court appearances etc. rather than total reliance on courts or prosecutors.

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The Right to Legal Representation The Right to Legal Representation for Pre-Trial Detaineesfor Pre-Trial Detainees

• Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment, Principles 17, 18, & 23.

• Standard Minimum Rules for the Treatment of Prisoners, Rule 93.

• Body of Principles on the Role of Lawyers, Principles 7 & 8.

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Ensuring Confidential Access to LawyersEnsuring Confidential Access to Lawyers

1. Physical rooms and procedures to ensure client confidentiality between the detainees and their lawyers

through correspondence and visits. (SMR 93)

2. Specially trained prison staff and/or NGO staff should provide advice to pre-trial detainees:

• on how to contact a lawyer whether they have or have not financial resources;

• on procedures for application for legal aid, bail, appeal etc.

3. Partnership with Legal NGO’s, Law Society, University LawStudents etc. to provide “Legal Clinics” free of charge inpre-trial prisons.

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Duty to Protect Rights of Pre-Trial prisonersDuty to Protect Rights of Pre-Trial prisonersin relation to Investigation Authoritiesin relation to Investigation Authorities

• International standards provide rules for the interrogation of pre-trial detainees. The prison management is responsible for the care of pre-trial prisoners and must ensure these standards are upheld.

• In collaboration with the Prosecution and the Courts, the Prison Authorities need to ensure that court or prosecution orders for a pre-trial prisoner’s isolation from other prisoners or visitors do not breach international human rights standards.

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Physical Conditions for Pre-Trial DetaineesPhysical Conditions for Pre-Trial Detaineesi.e. those “Presumed Innocent”i.e. those “Presumed Innocent”

• Very often much worse than sentenced prisoners.

• Very often the most overcrowded & insanitary.

• Very often the poorest facilities for essential programmes, e.g., visits, exercise, recreation, education, work, etc..

• Limited communal activities & prisoners confined to cells 23 hours a day.

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Location of Pre-Trial Prisons,Location of Pre-Trial Prisons,i.e. for those “Presumed Innocent”i.e. for those “Presumed Innocent”

• Need to be close to the prisoners’ community for ease of access of legal representatives and family.

• Need to be close to the Courts for escorting to & fro.

• Use of Video links to Courts.

• Will new large prisons located in isolated locations meet these needs?

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Escorting to & from CourtEscorting to & from Court• An issue not covered in international covenants &

instruments, and yet an area in which pre-trial prisoners are vulnerable to inhumane & undignified treatment, and torture.

• Inefficient escorting systems can create significant delays in court hearings.

• Which organisation does the escorting – the Prison authorities, the Police, specialised state authority attached to the courts, or private contractors?

• The need for escort vehicles which are dignified, safe and secure.

• The need for high performance management and close monitoring.

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Classification & SecurityClassification & Security

• The international human rights instruments require that the pre-trial detainees be held separately from convicted people save in exceptional circumstances, (e.g. Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment, Principle 8). Not always the case.

• Pre-Trial Prisoners are generally classified in the highest security category with the consequent restrictions & cost. Effective systems for Assessment of Risk can be applied to pre-trial prisoners as to sentenced prisoners, thereby reducing security restrictions on many.

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Special Regime for Pre Trial Detainees – Special Regime for Pre Trial Detainees – International StandardsInternational Standards

Standard Minimum Rules for the Treatment of Prisoners, Rule 84 (3):Standard Minimum Rules for the Treatment of Prisoners, Rule 84 (3):

“ ….these prisoners shall benefit by a special regime ….”

Standard Minimum Rules for the Treatment of Prisoners, Rules 86 – 91:Standard Minimum Rules for the Treatment of Prisoners, Rules 86 – 91:

“…have their food procured at their own expense from the outside, either through the administration or through family or friends. Otherwise the administration shall provide food.”

“…allowed to wear own clothing…”

“…always offered the opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it.”

“…shall be allowed to procure…books, newspapers, writing materials and other means of occupation …”

“…shall be allowed to be visited and treated by his own doctor or dentist …”

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Typical Pre-Trial PrisonerTypical Pre-Trial Prisoner• Poor.• Charged with non violent crime.• No contact with legal representative other than briefly

before court appearance.• Unsure when his next court appearance is and how

his case is progressing.• Living in overcrowded, unsanitary dormitory.• Locked up most of the day and night.• No opportunity for constructive activity e.g. work,

education, sport.• Bored and tense – just TV & fellow prisoners.• Family visits variable depending on prison location,

prosecution instruction, etc.

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Special Regime for Pre Trial Detainees – Special Regime for Pre Trial Detainees – Putting it into PracticePutting it into Practice

• Contact with legal representative & provision of advice re bail & court process.

• Decent living conditions.• Opportunity for work.• Opportunity for education and training.• Opportunity for constructive recreation.• Opportunities for visits from relatives and friends.• Opportunities for preparation for release, e.g. housing,

work, health, offending behaviour programmes.

Pre-Trial Prisons should have as full and active a regime as a Prison for sentenced prisoners, if not better. (N.B. “Presumption of Innocence”).

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ConclusionConclusion

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