Pretrial Detainees: At Risk of Torture

The Open Society Justice Initiative has just released, as part of its Global Campaign for Pretrial Justice, the latest in a series of reports focused on the millions of people around the world who are held in prison while awaiting trial—often unnecessarily and over excessive periods of time.

Pretrial Detention and Torture: Why Pretrial Detainees Are Most at Risk is part of a broader effort to demonstrate how this single issue of excessive detention lies at the heart of a web of misfortune and abuse that disproportionally affects the poor and the excluded, and which corrodes faith  in the rule of law and justice.

Released as the world marked the UN International Day of Support for the Victims of Torture (June 26), the report reminds us that torture and other ill-treatment of prisoners are not aberrations; they are common—even routine—in many detention facilities around the world. And while it is often assumed that torture victims are likely to be political prisoners or even suspected terrorists, most victims are ordinary people accused of ordinary crimes.

It details cases like Halima David, a 38-year old Nigerian woman who spent six years in pretrial detention in Nigeria. She was beaten, forced to swallow tear gas and, pregnant at the time of her arrest, lost her baby while in detention. She couldn’t afford to pay for a lawyer, had no contact with her husband and seven children, and later found out that her husband died while she was in detention.

The systemic factors that leave detainees such as Halima at risk of torture reflect the dysfunctional and underfunded criminal justice systems—systems that also allow people to languish in jail for years while awaiting trial on charges that they may well be innocent of.

The report argues that systematic torture flourishes in under-resourced police departments, and in countries where the courts rely too heavily on confessions rather than evidence and forensic work for convictions. And it asserts that affordable or free legal assistance can deter torture – just as it can make it easier for suspects accused of low level, non dangerous crimes to secure their release on bail.

The first report in this series focused on other costs of these failures of the system. The Socioeconomic Impact of Pretrial Detention showed how the issue can have devastating effects on families and communities. When a person is detained their families, who may already be on the brink of poverty, struggle to survive with less income and additional expenses. The impacts are also long-term and intergenerational; for example the families of torture victims take on responsibilities to care for relatives who suffered long-term physical and mental injuries and children grow up facing separation and discrimination.

A third report, which will come out later this year, will look at how excessive pretrial detention can also destroy the health not only of detainees held in overcrowded and often insanitary prisons and detention centers, but also of their communities.

The figures on pretrial detention are terrifying. In Nigeria the average time spent in pretrial detention is 3.7 years; in Kenya some individuals have waited more than 17 years for trial. In many countries, over three quarters of all prisoners are pretrial detainees. This includes Liberia (97 per cent of all prisoners awaiting trial), Mali (89 percent), Benin (80 percent), and Haiti (78 percent).

In many parts of the world poor people have a justifiable fear, that if apprehended by the police they will “fall into a criminal justice abyss that is almost impossible to escape,” according to one of the detainees quoted in the report on torture.

There is little outspoken condemnation from governments, professionals or the public on the systematic use of torture despite the fact that it is recognized as the "most serious violation of the human right to personal integrity and dignity."

Governments need to recognize, in the words of this new report, that “although rational pretrial detention can play an important role in criminal justice systems, it should be the exception rather than rule, to be used only under certain specific conditions.” The costs of doing otherwise are too great.

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