Pretrial detention and torture: Why pretrial detainees face the greatest risk

Torture and cruel, inhuman or degrading treatment are not aberrations. They are common—even routine—in many detention facilities. Of the nearly ten million people in detention (including both pretrial and post-conviction detainees) around the world, those held in pretrial detention are most at risk of torture. Pretrial detainees are wholly in the power of detaining authorities, many of whom perceive torture as the fastest way to obtain information or a confession and the easiest way to exercise physical and mental control over detainees. The practice is exacerbated by indiscriminate arrests, primarily of poor people without the resources to extricate themselves from detention; criminal justice systems that rely on confessions rather than good policing; official corruption; and public acceptance of torture.[1]

THE PROHIBITION OF TORTURE UNDER INTERNATIONAL LAW

Torture and other cruel, inhuman or degrading treatment or punishment are universally recognized as abhorrent and, under international law, are prohibited at all times.[2] Torture is considered the ‘most serious violation of the human right to personal integrity and dignity’ and is banned absolutely under the United Nations Convention Against Torture and a host of other treaties and laws.[3]

WHO IS AT RISK?

All detained persons are at risk of being tortured. Although many people assume torture victims are likely to be political prisoners or suspected terrorists, most victims of torture and inhuman treatment are ordinary people accused of ordinary crimes. Those from the poorest and most disadvantaged sectors of society are at particular risk.[4] They are more likely to be discriminated against by the police and less able to pay bribes, and thus more likely to end up in detention. While detained, the discrimination usually continues and exposes them to an increased risk of torture, compounded by their inability to afford a lawyer.

WHEN ARE DETAINEES MOST AT RISK?

While all detainees are at risk of torture and ill-treatment at all stages (both pretrial and post-conviction) of their detention, torture is most likely to occur at the pretrial stage. Torture flourishes during the very initial stages of detention—usually in the first days or even hours of police custody—when the police seek information and/or confessions from detainees. Sadly, in most systems, this moment of maximum police incentive to torture coincides with the period when there are the fewest checks on police activity. During pretrial detention, the actions of police officers or guards are least visible and their discretion is greatest.

Three distinct phases can be identified during the pretrial stage.

1) Upon apprehension:

The police may legally use physical force to apprehend and secure a suspect to prevent escape or harm, as long as the use of force is proportionate to the situation. The illegal or excessive use of force that often amounts to torture or ill treatment frequently occurs:
- While making arrests, particularly during mass police operations.
- During transfer to the police station, for example in the police vehicle.
- During a stop at a secret detention center or a secluded location en route to the police station.

The risk of torture is particularly high during transfer because monitoring mechanisms and other controls which might be present in police stations, such as video cameras or detainee registries, are typically absent during this period.

2) In police custody:

Most torture takes place during police detention, prior to a detainee’s appearance before a judge. Torture in police custody was found to be widespread or systematic in eleven of the fifteen countries visited between 2005 and 2009 by the current UN Special Rapporteur on Torture. Suspects are often interrogated without the presence of a lawyer or any independent monitor, providing officials ample opportunity to exert pressure through ill-treatment. Most police facilities are designed to hold a small number of prisoners for a short period of time. Yet in many countries, conditions are so poor, unhygienic, and overcrowded that police custody amounts to cruel, inhuman or degrading treatment or punishment. This is compounded when, as often happens, suspects are kept in police custody for lengthy periods.

3) In pretrial detention:

Under international standards, people awaiting trial should be allowed to return to their communities on condition that they respect the law and appear for trial on a set date. Only in exceptional circumstances should individuals be detained pending trial. Aside from being a recognized international requirement, allowing suspects to return to their communities reduces the scope for mistreatment and adds transparency to the criminal justice system. If circumstances require a suspect to be detained, he or she should be held in specific remand facilities and should have no unsupervised contact with the investigating authorities. In practice this is often not the case: pretrial detainees are often held in conditions and subject to treatment far worse than that experienced by prisoners who have been found guilty. Common abuses include:

- Exposure to violent ‘welcome treatments’ as a means of intimidation or subordination to the rule of prison guards or other resident detainees.
- Torture as a disciplinary measure.
- Detention conditions that amount to cruel, inhuman, or degrading treatment.

SYSTEMIC FACTORS

Several factors promote the continued practice of torture at the pretrial stage, including:
- Excessive use of pretrial detention.
- Malfunctioning and under-resourced criminal justice systems, including systems that are focused on confessions and marked by corruption.
- Inadequate custodial measures, resulting in the failure to register detainees when they are taken into custody, or monitor their progress through the system.
- Lack of access to counsel, including legal aid for indigent detainees.
- Restrictions on outside access to police stations and detention facilities, limiting independent monitoring—and hence public awareness of the abuses taking place.
- Inadequate or nonexistent complaint mechanisms for prisoners.
- Insufficient prohibition of torture within national legal frameworks.

RECOMMENDATIONS

- Reduce excessive and arbitrary pretrial detention to ensure that it is used as an exceptional measure, in accordance with international law. Fewer people in pretrial detention means fewer people exposed to the risk of torture and a reduction in overcrowding.
- Ensure early access to legal and medical assistance to enable suspects to seek advice prior to interrogation and report cases of torture. The presence of external professionals also increases the openness and transparency of the system.
- Ratify the Optional Protocol to the UN Convention Against Torture (OPCAT) and establish National Preventive Mechanisms (NPMs), including establishing mechanisms for the independent monitoring of police lock-ups and other places of pretrial detention.[5]
- Invest in professional law enforcement services that use investigative techniques and practices, and discourage coercive interrogation methods.

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NOTES
[1] Roy Walmsley, World Prison Population List, Eighth Edition, ICPS, available at: http://www.kcl.ac.uk/depsta/law/research/icps/downloads/wppl-8th_41.pdf The list states that ‘more than 9.8 million people are held in penal institutions throughout the world.’
[2] Defined under the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT).
[3] UN Special Rapporteur on Torture, e/cn.4/2006/6, para. 39.
[4] UN Special Rapporteur on Torture, a/64/215, 3 august 2009.
[5] The Optional Protocol on the UN Convention Against Torture requires that each country set up a National Preventive Mechanism (NPM). As of March 2010, 29 countries had designated NPMs.