Making Headway with Pretrial Justice

The Global Campaign for Pretrial Justice was set up to tackle the excessive and arbitrary use of pretrial detention: situations where people are thrown into detention, often on minor or arcane accusations, and then their families are dragged into system; or cases where pretrial detention has simply become the norm and effective alternatives such as bail or supervised release are not considered.

Locking up pretrial detainees has exacerbated overcrowding in prisons around the world, and contributed to rising detention rates. In too many countries, prisons are not only vastly overcrowded but pretrial detainees also make up the majority of the prison population.

The campaign has taken a multi-pronged approach: documenting the scale and consequences of the problem; building regional communities of practice; advocating for improved international and regional standards; and testing effective, but low-cost, solutions.

Pretrial detention has for long been an almost forgotten area for governments and donors. But the issue has begun to attract more attention. In 2011 Thomas Hammarberg, then Commissioner for Human Rights at the Council of Europe stated that “excessive pretrial detention runs against human rights [it] must… be seen as a measure of exceptional nature [and] should be applied only when all other options are judged insufficient.”

Over the past year, there have been significant advances, particularly in improving the international and regional legal frameworks that can help improve the quality of pretrial justice:

• In April, the UN adopted a set of Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, marking a milestone in the global effort to improve access to justice, one of the most effective ways of protecting the rights of pretrial detainees.
• Sierra Leone demonstrated one way forward in this area, by enacting one of the most progressive legal aid laws in Africa—taking an approach tailored to reinforcing the rule of law in a country still scarred by the aftermath of conflict. The law affirms the contribution of multiple legal aid providers, including community based paralegals.
• In West Africa, a judgment from the Community Court of Justice of the Economic Community of West African States (ECOWAS) ordered the release of a Nigerian man who had been held without trial in a Lagos prison for almost a decade. Representing another step forward for pretrial justice, the court found that Sikiru Alade’s detention violated his right to personal liberty and his right to a fair trial.
• In Europe the European Union adopted a Directive on the Right to Information in Criminal Proceedings—detailing a letter of rights that every suspect should receive. The directive is part of an ambitious plan to improve procedural defence rights through a series of directives ranging from the right to translation, to access to a lawyer which is currently being negotiated.

There is hope for further progress in the year ahead. The African Commission on Human and Peoples’ Rights is working on guidelines on policing and pretrial detention—addressing decisions that effectively determine all subsequent steps along the criminal justice chain. And the Inter-American Commission on Human Rights is writing a thematic report on pretrial detention following a hearing last November.

The advances made so far help focus attention on the entry point to the criminal justice system; decisions made in the first hours or days after arrest can have an impact on all subsequent stages of the criminal justice process, and how it affects the suspect and his or her family. They also recognize the importance of access to legal aid in ensuring that proper legal assistance and the right to defense is not only the prerogative of those with money, but accessible to all, and in striving to achieve this employ flexible strategies and take into account circumstances where there are very few lawyers. More broadly, they all raise the profile of the problem of excessive and arbitrary pretrial detention, which is regrettably the default practice many justice systems.

The progress made also reflects on-the-ground experiences and recent research. For example, the UN Guidelines on Legal Aid grew out of the Lilongwe Declaration which was adopted by a group of practitioners and policy makers who were actively engaged in projects to bring the law closer to affected communities. Advocacy efforts have also been led by groups of organizations at the regional level in Africa, Europe, and Latin America who have joined forces to bring collective weight and experience to the issue of pretrial justice—these efforts, and pilots on the ground in places such as Malawi, Mexico, Nigeria, and Sierra Leone, are evidenced in the multiplicity of approaches visible in the new legal frameworks.  

So where do we go from here? The new legal frameworks provide an exciting basis for change—some, such as the EU directives, are binding on member states and the regional and international guidelines will serve as tools for domestic laws, references for litigation and as a baseline for policy reform. Some of the challenges ahead are around effective implementation, creative use of the tools and guidelines, and a more robust use of evidence and data. But genuine progress in prisons and police cells around the world will require all of us to work towards effective implementation, turning principle into practice.