Detention Monitoring Tool  Second edition

Pre-trial detention

Addressing risk factors to prevent torture and ill-treatment
‘Long periods of pre-trial custody contribute to overcrowding in prisons, exacerbating the existing
problems as regards conditions and relations between the detainees and staff; they also add to the
burden on the courts. From the standpoint of preventing ill-treatment, this raises serious concerns for a
system already showing signs of stress.’
(UN Subcommittee on Prevention of Torture)1

1.	Definition and context

2.	What are the main standards?

Remand prisoners are detained during criminal
investigations and pending trial. Pre-trial detention is
not a sanction, but a measure to safeguard a criminal

Because of its severe and often irreversible negative
effects, international law requires that pre-trial detention
should be the exception rather than the rule.

At any one time, an estimated 3.2 million people are
behind bars awaiting trial, accounting for 30 per cent of
the total prison population worldwide. In some countries,
pre-trial detainees reportedly constitute the majority of
the prison population, and in some settings even over
90 per cent of detainees.2 They are legally presumed
innocent until proven guilty but may be held in conditions
that are worse than those for convicted prisoners and
sometimes for years on end.
Pre-trial detention undermines the chance of a fair trial
and the presumption of innocence. It increases the risk
of a confession or statement being coerced by torture
or ill-treatment and ‘lessens a suspect’s possibilities of
defence, particularly when the person is poor and cannot
rely on a defence counsel or support to obtain evidence
in his favour’.3
Alongside the general risk of violence from guards
and fellow prisoners, high rates of pre-trial detention
also contribute to widespread prison overcrowding,
exacerbating poor prison conditions and heightening the
risk of torture and ill-treatment.4

Pre-trial detention is only legitimate where there is a
reasonable suspicion of the person having committed
the offence, and where detention is necessary and
proportionate to prevent them from absconding,
committing another offence, or interfering with the course
of justice during pending procedures. This means that
pre-trial detention is not legitimate where these objectives
can be achieved through other, less intrusive measures.
Alternative measures include bail, seizure of travel
documents, the condition to appear before the court as
and when required and/or not to interfere with witnesses,
periodic reporting to police or other authorities, electronic
monitoring, or curfews.
Both the UN Standard Minimum Rules for Non-custodial
Measures (the ‘Tokyo Rules’) and the UN Rules for the
Treatment of Women Prisoners and Non-Custodial
Measures for Women Offenders (the ‘Bangkok Rules’)
encourage criminal justice systems to provide a
wide range of non-custodial measures to avoid the
unnecessary use of imprisonment. However, the absence
of alternatives and shortcomings in their implementation
have been reported by international5 and regional6

1.	 UN Subcommittee on Prevention of Torture (SPT), Report on Benin, 11 March 2011, CAT/OP/BEN/1, para.158.
2.	 Report of the United Nations High Commissioner for Human Rights, Human rights implications of overincarceration and overcrowding, 10 August
2015, A/HRC/30/19, with reference to CAT/C/TGO/CO/2, para. 12, www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/OSJI.pdf and
A/HRC/25/71, para. 33.
3.	 UN Subcommittee on Prevention of Torture (SPT), Report on Paraguay, 7 June 2010, CAT/OP/PRY/1, para.64.
4.	 Report of the United Nations High Commissioner for Human Rights, Human rights implications of overincarceration and overcrowding, 10 August
2015, A/HRC/30/19.
5.	 See UN Subcommittee on Torture, Report on Brazil, 5 July 2012, CAT/OP/BRA/1, para. 96; UN Human Rights Committee, Concluding observations on
the initial report of Angola, 29 April 2013, CCPR/C/AGO/CO/1, para. 19; Report of the UN Special Rapporteur on torture, Mission to Ghana, 5 March
2014, A/HRC/25/60/Add.1, para. 84; and UN Committee against Torture, Consideration of reports submitted by States parties under article 19 of the
Convention, 20 January 2011, CAT/C/KHM/CO/2, para. 19.
6.	 See European Committee for the Prevention of Torture, Visit to Slovak Republic 24 September to 3 October 2013, 25 November 2014, CPT/Inf (2014)
29, para. 33.

Penal Reform International | Pre-trial detention: Addressing risk factors to prevent torture and ill-treatment	


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