Press Release

IACHR presents Report on Measures Aimed at Reducing the Use of Pretrial Detention

September 7, 2017

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Mexico City - The Inter-American Commission on Human Rights (IACHR) today released a report on measures aimed at reducing the use of pretrial detention in the Americas. The arbitrary and illegal use of pretrial detention is a chronic problem in the region. The non-exceptional use of this measure is one of the most serious and widespread problems facing member states of the Organization of American States (OAS) in regard to the respect for and guarantee of the rights of persons deprived of liberty.

The Commission recognizes and values the significant efforts made by States to reduce the use of pretrial detention, but its use remains widespread and excessive. In the region, the average number of people in pretrial detention is 36.3% of the total prison population, surpassing 60% in some countries. The measures necessary to reduce the abusive use of pretrial detention and respond to the prison crisis are known, and to some extent already proven. However, the IACHR expresses its concern about the general lack of political will on the part of the States to make effective the implementation of such measures and urges States to take the necessary actions to ensure that preventive detention is used in accordance with its exceptional nature, thus reducing the high levels of overcrowding that characterize the region.

"The excessive use of pretrial detention constitutes an unacceptable structural problem in a democratic society which respects the right of everyone to the presumption of innocence; It represents a practice contrary to the very essence of the rule of law and the values ​​that inspire a democratic society "said the Rapporteur on the Rights of Persons Deprived of Liberty, Commissioner James Cavallaro.

The main purpose of the report is to follow up on the Report on the Use of Pretrial Detention in the Americas of 2013, analyzing the main progress and challenges in the use of this measure by States. In particular, it follows up on recommendations referred to State policies, eradication of pretrial detention as an early penalty or social control tool, public defense, use of alternative measures, and celerity of the procedures and correction of procedural delay. The report also incorporates a gender perspective and a differentiated approach to people belonging to different groups at special risk, such as people of African descent, indigenous people, older persons, people with disabilities and people with diverse sexual orientation and gender expression or identity.

Likewise, the report provides recommendations aimed at reducing the use of pretrial detention in accordance with international standards in this subject, with an emphasis on the application of alternative measures that allow the accused person to be released while the criminal procedure goes forward. "There are many and important advantages of implementing alternative measures to rationalize the use of pretrial detention and adjust it to inter-American and international standards," said Rapporteur Cavallaro. "When alternative measures are used, family disintegration and stigmatization of the community is avoided, recidivism rates are reduced and public resources are used more efficiently," he added.

There are numerous obstacles to reducing the use of pretrial detention. For example, judicial authorities that apply alternative measures are sanctioned disciplinarily, as a means of pressure or punishment. Added to this is an inadequate public defense and lack of inter-institutional coordination among actors in the justice administration system. Likewise, there is a tendency in the region to propose higher levels of imprisonment as a response to citizen insecurity. This results in the adoption of laws and practices that privilege the application of pretrial detention and that restrict the possibility of applying alternative measures. In the speeches of high-level authorities prevail the proposals to implement "hard line" policies, which focus on deprivation of liberty as a response to citizen insecurity, and consequently privilege the application of pretrial detention. This, in turn, generates pressure from the media and public opinion to implement such policies.

"Citizen insecurity is a serious problem in the region and the population has the right to demand that action be taken to resolve it," said IACHR President, Commissioner Francisco Eguiguren. "However, it has been demonstrated that hard line policies not only violate people's human rights but are also ineffective in guaranteeing citizen security. One of the most serious and worrying consequences is that its implementation has led to an unprecedented increase in the number of people in remand, without sentence, aggravating prison overcrowding," he added.

In the context of punitive response to citizen insecurity, the consumption and possession of drugs for personal use, as well as other minor crimes committed by the dependent or problematic use of these substances, are seriously punished. These behaviors are characterized in the legislations as "serious crimes" and preventive detention is applied automatically, impeding the people accused of these crimes to benefit from alternatives to imprisonment. The hardening of criminal policies on drugs has resulted in a notable increase in the number of persons deprived of liberty in the region, and has particularly affected women. The IACHR expresses its particular concern about this problem and urges the States of the region to study less restrictive approaches, through the decriminalization of consumption and possession of drugs for personal use.

Another issue of concern to the IACHR is that, in order to reduce the use of pretrial detention, some States have implemented short or immediate trials, which are characterized by a reduction of procedural timeframes, confirmation of sentences in a shorter period of time, and of oral presentation of evidence. These processes often affect due process and end in the conviction of persons arbitrarily charged, based on summary proceedings, without sufficient guarantees, and which would affect the right to adequate defense. In addition, short or immediate trials do not result in effective measures to deal with overcrowding, since it would only be increasing the number of arbitrarily convicted persons.

The IACHR recognizes the good practices adopted by States in the region, such as the reduction of pretrial detention periods, the creation of special programs for electronic monitoring and the establishment of services to verify procedural risks and to supervise precautionary measures. It also values ​​efforts to implement restorative justice programs, periodic reviews of cases in pretrial detention, holding prison hearings, and preliminary hearings on the determination of pretrial detention in order to avoid unnecessary deprivation of liberty. The Commission urges the States of the region to continue making progress in implementing these types of measures.

Through this report, the Inter-American Commission offers specific recommendations for States to correct the excessive application of pretrial detention, especially through the use of alternative measures. The IACHR urges the States of the region to ensure that pretrial detention is exceptional and is limited by the principles of legality, presumption of innocence, necessity and proportionality. In addition, in order to give effect to the recommendations of the report, the IACHR urges States to involve civil society and the people who are the beneficiaries of these State policies in order to ensure that the design and implementation of policies aimed at the rational use of preventive detention are comprehensive, participatory and inclusive.

This report is accompanied by a Practical Guide to Reduce Pretrial Detention, directed at authorities responsible for addressing the inherent challenges in reducing excessive use of pretrial detention.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and defense of human rights in the region, and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 136/17