Part 2 of the 'Prison System' sector of the Criminal Justice Assessment Toolkit, produced by the United Nation Office on Drugs and Crime in close co-operaiton with the Strategic Police Matters Unit of the OSCE Secretariat.
This tool guides the assessment of detention during the period between arrest and sentence. It includes the time spent in the custody of police or other law enforcement agencies, as well as the period after which a court remands a suspect in custody until he or she is adjudicated, and where convicted, sentenced or released. Detention is a particularly sensitive area in the criminal justice process. It is the period most open to abuse, as documented in numerous reports by international inspection bodies. Recognizing the particular vulnerability of detainees prior to adjudication, international human rights instruments provide for a large number of very specific safeguards to ensure that the rights of detainees are not abused, that they are not ill-treated and their access to justice not hindered.
International human rights law prohibits the use of arbitrary arrest and detention (Universal Declaration of Human Rights (Article 9). Article 9(1) of the International Covenant on Civil and Political Rights, requires that an accused understands what he/she is charged with; Article 9(2) provides that the accused be brought “promptly” before a court; and Article 9(3) requires that the consideration of release pending trial “subject to guarantees” should be exercised in favour of the accused.
The thirty-nine clauses in the Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment underscore the legal protections surrounding the detainee.
The decision whether to remand an accused or suspect to prison before his or her trial is usually a matter for the discretion of a court of law. The decision will be influenced by the prosecution or police who may seek to argue that because of the serious nature of the offence; the strength of the evidence against the person accused of committing it; or the past behaviour or personal characteristics of the accused, he or she is likely to: