PRE-TRIAL DETENTION

Prisoners in pre-trial detention, or on remand, are those who have been detained without a sentence and are awaiting legal proceedings. They are also known as untried or unconvicted prisoners.

The excessive length and use of pre-trial detention is a major cause of overcrowding in prisons. In some countries the majority of the prison population comprises detainees awaiting trial. In Nigeria, for example, more than 25,000 prisoners are currently detained in prisons without conviction due to delays in the justice system, missing files, absent witnesses and prison mismanagement.

In India, as many as seven out of 10 Indian prisoners are pre-trial detainees. The high number of pre-trial detainees in India is attributed to delays encountered at various stages in the criminal justice system, exacerbated further by an acute shortage of judges - 10 judges per one million people.

International standards

Articles nine and 14 of the International Covenant on Civil and Political Rights (ICCPR) require that prisoners must be brought to trial and the proceedings completed within ‘a reasonable time’ or be released on bail. This reflects other principles, namely that everyone charged with a crime has the right to be presumed innocent until proven guilty and that the deprivation of liberty must be an exceptional measure. The UN Human Rights Committee has stated that:

What constitutes "reasonable time" is a matter of assessment for each particular case. The lack of adequate budgetary appropriations for the administration of criminal justice …does not justify unreasonable delays in the adjudication of criminal cases. Nor does the fact that investigations into a criminal case are, in their essence, carried out by way of written proceedings, justify such delays.¹

The UN Standard Minimum Rules for the Treatment of Prisoners sets out the standards for the detention of pre-trial detainees. These include the right to be held separately from convicted prisoners, the right to wear their own clothes and to access medical assistance, free legal assistance and contact with family and friends.

PRI’s work on pre-trial detention

PRI has worked with governments, prison administrations and civil society to reduce pre-trial detention in many countries including Bolivia, Georgia, Guatemala, Kazakhstan, Kenya, Malawi, Nepal, Nigeria, Peru and the Russian Federation.

PRI has convened a series of pan-African conferences on prison conditions in Africa which have produced a series of statements aimed at identifying good practice with respect to pre-trial detention. Two of these have been adopted by the UN.

PRI has worked towards promoting alternatives to custody and other diversionary mechanisms. In Africa, PRI has also supported the development of the Paralegal Advisory Service as a model for legal aid in criminal matters for poor people in conflict with the law at police stations, courts and prisons.

To address prison overcrowding and the steady rise in the prison population in Georgia, PRI is conducting research on the circumstances in which pre-trial detention is called for by prosecutors and applied by judges. This will be used to influence policy, practice and legislation.

Reducing pre-trial detention: An index on good practices developed in Africa and elsewhere

Kampala Declaration on Prison Conditions in Africa

Arusha Declaration on Good Prison Practice

The Ouagadougou Declaration on Accelerating Prison and Penal Reform in Africa

1. Fillastre v Bolivia, Communication No 336/1988