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Pretrial Detention and Torture Moritz Birk, Julia Kozma and Debra Long

Pretrial Detention and Torture Moritz Birk, Julia Kozma and Debra Long. MULTI-DISCIPLINARY MEETING THE GLOBAL CAMPAIGN FOR PRETRIAL JUSTICE 19th-20th November 2009 Open Society Justice Initiative. Overview Legal Framework Practice of Torture and Ill-Treatment in Pretrial Detention:

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Pretrial Detention and Torture Moritz Birk, Julia Kozma and Debra Long

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

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

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

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

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

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

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

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

  9. Thank You!UN Special Rapporteur on Torture, OHCHR:http://www2.ohchr.org/english/issues/torture/rapporteur/Ludwig Boltzmann Institute of Human Rights, Vienna:http://bim.lbg.ac.at/Atlas of Torture:http://www.atlas-of-torture.orgBristol University, Human Rights Implementation Centre:http://www.bris.ac.uk/law/research/centres-themes/hric/aboutcentre.html

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