Submitted by CRIN on
[17 January 2014] - Since its establishment, the Inter-American Commission on Human Rights (IACHR) has devoted special attention to the situation of persons deprived of liberty in the Americas. In this context, for more than a decade, the IACHR has considered the excessive use of pretrial detention as one of the most serious and widespread challenges faced by the vast majority of the States in the Americas. In certain countries such as Bolivia, Paraguay, Uruguay and Panama the percentage of persons deprived of liberty and awaiting trial are truly alarming. In other countries, even though the official data shows that the number of persons in pretrial detention is less than those of convicted prisoners, the Commission has found other kinds of deficiencies that indicate this measure is not exceptional, as it should be in a democratic society.
The foregoing occurs despite of the existence of binding obligations of international treaty law, which are very clear in recognising the presumption of innocence and the exceptional nature of pretrial detention; the broad recognition of these rights in many of the constitutions of the region, and the political pledge taken at the highest level by the OAS Member States in various opportunities.
As a response to this reality and the complexity of the problem, the Inter-American Commission is issuing its Report on the Use of Pretrial Detention in the Americas. This reports states that the excessive use of pretrial detention, runs counter to the very essence of democratic rule of law, which prohibits its use as a sort of anticipated punishment or swift justice without trial. Therefore, extreme precautions must be put in place for any instance in which this measure is applied, in order to respect due process rights.
The IACHR recognises the duties of States to maintain public order and protect all persons under their jurisdiction from crime and violence. However, the means and methods used to carry out these obligations must be in accordance with international human rights recognised by States and with the principles that guide a democratic society.
Moreover, in the vast majority of the OAS Member States persons on pretrial detention are exposed to the same or worse conditions than convicted persons, are usually subjected to immense stress as a result of lost income and forced separation from their families and communities, and are exposed to a climate of violence and corruption as well as the unsanitary and inhume conditions prevailing in the vast majority of prisons in the region.
The excessive use of preventive detention is a complex problem caused by a variety of factors, such as the design of the law, structural deficiencies in administration of justice systems, interferences with judicial independence, and deeply rooted tendencies in judicial culture and practice, among others. At the same time, the excessive recourse to pretrial detention exacerbates other existing problems in the region, such as high rates of prison overcrowding. As is addressed in the aforementioned report, the non-exceptional use of pretrial detention not only causes serious problems of prison management, but also results in being considerably expensive and burdensome for States; all the while it is not an effective measure in reducing the levels of violence and crime.
In this Report on the Use of Pretrial Detention in the Americas the IACHR analyses the general situation on the use of pretrial detention in the region, identifies common challenges, presents both official information provided by both the States and by other stakeholders, and underscores the main international standards on the matter. Likewise, it advances in the development of new standards not only on the application of pretrial detention but also on the use of alternative measures other than pretrial detention, the right to vote of persons in detention, the effect of the excessive use of pretrial detention on the penitentiary systems, the transparency in prison operations, and the management of information on the use of pretrial detention, among other topics.
Essentially, the Inter-American Commission stresses that pretrial detention must be the exception, not the rule; applied only with the aim of protecting the proper goal of the procedures, namely where the person presents a fleeing risk or to prevent the obstruction of the investigation; and, in accordance to the criteria of necessity, proportionality and for a reasonable period of time.
*The English version of the report will be released soon upon the completion of its editing.
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