FACTSHEET

bodies, and identified as a significant contributor to
overincarceration and overcrowding.7

3.	Types and situations of risk

A range of standards linked to arrest and pre-trial
detention are safeguards in their own right, while at the
same time protecting arrestees and remand prisoners
from torture and other ill-treatment. These include:
protection against arbitrary arrest; prompt information
about the reasons for arrest and detention; prompt
registration of the arrest including precise information
about the reasons; identity of the law enforcement
officials and the place of detention; prompt access to a
judge; habeas corpus; trial without delay; presumption
of innocence; separation of pre-trial detainees from
convicted prisoners; regular review of the legality of pretrial detention; and access to the outside world, including
access to independent doctors and family visits.

3.1. Insufficient safeguards during arrest
The moment of arrest is a particularly dangerous
situation in the context of torture and ill-treatment as
law enforcement officials may coerce a statement or
confession in order to justify the arrest, before the
arrestee has had a chance to seek legal representation.
Most occurrences of torture take place during police
detention prior to a detainee’s appearance before a
judge. In many jurisdictions, this risk is exacerbated by
the long periods for which an arrestee can be held at a
police station without being brought before a judge, and
by provisions preventing access to a lawyer during the
first day(s) after arrest.

Main references
•	 International Covenant on Civil and Political Rights
(1966), Articles 9 and 14

•	 Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment (1988)
•	 UN Principles and Guidelines on Access to Legal Aid
in Criminal Justice Systems (2012)

•	 UN Standard Minimum Rules for Non-custodial
Measures (The Tokyo Rules) (1990)

•	 Revised UN Standard Minimum Rules for the

Treatment of Prisoners (1955) – Section C – Prisoners
under arrest or awaiting trial, Rules 111-1208

•	 UN Basic Principles on the Role of Lawyers (1990)
•	 UN Rules for the Treatment of Women Prisoners and
Non-custodial Measures for Women Offenders (The
Bangkok Rules) (2010), Rules 57 et sqq

•	 UN International Convention for the Protection

of All Persons from Enforced Disappearance (for
registration/ documentation) (2007)

•	 European Convention on Human Rights, Articles 5 and 6
•	 American Convention on Human Rights, Articles 7 and 8

Kazakhstan: Moment of arrest
In March 2012, the Constitutional Council of
Kazakhstan had to rule on the interpretation
of Article 16 (2) of the Constitution, according
to which a person may only be detained for a
period of 72 hours before being brought before
a judge. There had been differing opinions
on what triggers the start of this time period,
with the prevailing interpretation being that
it should start from the arrival of the suspect
in a detention centre or the registration of the
detainee. However, such an interpretation
would mean that authorities could determine
– and manipulate – access to safeguards,
by delaying the transfer or registration of
the arrestee and thereby undermining their
protection. In part based on a submission
by Penal Reform International Central Asia,
the Constitutional Council established10 that
‘arrest’ refers to the moment when a person is
apprehended.11

•	 Principles and Best Practices on the Protection of

Persons Deprived of Liberty in the Americas African
Charter of Human People’s Rights (Banjul Charter),
Articles 6 and 7

•	 African Commission on Human and Peoples’ Rights,
Guidelines for Pre-Trial Detention9

Lack of information about the nature and cause of the
charges, in a language the arrestee understands, further
reduces their ability to withstand pressure and coercion,
and increases the risk of an infringement of the right to
silence.

7.	 See Report of the United Nations High Commissioner for Human Rights, Human rights implications of overincarceration and overcrowding, 10 August
2015, A/HRC/30/19, para. 39.
8.	 The revised United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), adopted by the UN Commission on
Crime Prevention and Criminal Justice on 22 May 2015, endorsed by the Economic and Social Council on 9 September 2015, E/RES/2015/20 and
adopted by UN General Assembly Third Committee on 5 November 2015, A/C.3/70/L.3 (at the time of printing this Resolution was pending adoption
by the plenary of the UN General Assembly.)
9.	 Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa, adopted by the African Commission on Human and Peoples’
Rights (the Commission) during its 55th Ordinary Session in Luanda, Angola, from 28 April to 12 May 2014. http://www.achpr.org/files/specialmechanisms/prisons-and-conditions-of detention/guidelines_arrest_police_custody_detention.pdf <accessed 3 December 2015>.
10.	Decision of the Constitutional Council of Kazakhstan, 13 April 2012 # 2. Full text (in Russian) available at: http://www.codices.coe.int/NXT/gateway.dll/
CODICES/precis/eng/asi/kaz/kaz-2012-3-001?f=templates$fn=document-frame.htm$3.0 <accessed 17 November 2015>.
11.	See Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Use of terms, lit. (a), adopted by General
Assembly resolution 43/173 of 9 December 1988.

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

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