The Neglected Child of Human Rights Law
Pre-trial detainees and the magnification of their human rights violations during COVID-19
By: Sudipta Purkayastha* |
“Well, how can you call yourself a human rights advocate when you defend a criminal behind some of the most shocking crimes in human history?” This is a common refrain that almost every criminal defence lawyer has, at some point, likely been confronted with – or rather, challenged with. Especially if you work in the international criminal justice field.
The answer is fairly simple, though of course it is rarely appreciated by the questioner: criminal defendants have human rights too. Yet the treatment of accused persons in criminal justice systems across the world, both domestic and international, raises myriad concerns of human rights violations.
Through my (admittedly limited) experience with criminal defence work, I have become only too keenly aware of the uphill battles faced by accused persons owing to the zealousness of the prosecution and the court in closing a case – sometimes because certain statistical thresholds of conviction have to be met. Important fair trial rights such as the presumption of innocence and equality of arms may be rendered merely fictitious when faced with prejudices linked to race, economic class, gender, or even reputation in the media.
In the international criminal justice context, the focus on accountability and fighting impunity often eclipses the human rights of the accused. Ranging from serious issues of prosecutors at international criminal tribunals openly offering money to potential witnesses for information, raising questions of credibility of witness testimonies, to more subtle fair trial concerns arising out of unchecked victim participation in the criminal proceedings, accused persons may face many a hurdle in defending themselves.
There is much to say on the topic of fair trial rights, and I could not pretend to address all issues within one article. Instead, I restrict my attention to the most relevant topic of present times, the coronavirus pandemic, and its effect on the human rights of accused persons.
This pandemic has proven to be a catalyst for a ‘novel’ set of human rights concerns vis-à-vis criminal defendants - specifically those detained pending trial - linked to fair trial rights and the right to life/health and well-being. These issues, however, are not new: they have latently been in play all along, and the coronavirus pandemic has only exposed (and aggravated) the general poor treatment of accused persons detained pending trial.
Human rights of criminal defendants remanded in custody during the Coronavirus pandemic
During this pandemic, criminal systems all around the world shut down indefinitely. Rightly so, as it would be virtually impossible to arrange for criminal proceedings with the judges, lawyers, interpreters, defendants, not to mention the general public/media (which of course can be excluded on grounds of public order/national security) all in one courtroom without inviting disaster.
So far, so good. But what of the rights of defendants in criminal cases who continue to be remanded in custody for the purposes of their trials?
Incompatibility of continued detention with fair trial rights
The first major human rights issue arising, which government decisions and human rights advocacy alike overlook, is that of the irreconcilability of a defendant’s continued detention in remand with the State’s inability to guarantee their fair trial rights.
International and regional human rights law alike mandate that a person charged with crimes be provided with a ‘prompt’ public trial ‘within a reasonable period’ or ‘without undue delay’. During the coronavirus pandemic, such trials are suspended and accused persons no longer have access to courts to have their charges ascertained. This is in itself would not violate any fair trial rights, because public emergencies of this seriousness allow such fair trial rights to be suspended. However, the real issue is that such suspension of court proceedings is rarely accompanied by a suspension of detention of under-trial prisoners.
Detention in remand may only be undertaken for the purpose of facilitating and ensuring a fair trial, so if the trial itself is relegated to a state of indefinite uncertainty, there is no justification for continuing to hold such persons in a kind of detention which has no end in sight.
This is particularly because persons held in detention pending trial especially are entitled to special diligence and protection by the State. Such persons have not yet been convicted for the crimes charged, and therefore cannot be treated as such, in keeping with the presumption of innocence. The State cannot leave them detained in a state of limbo without any foreseeability of when their charges will be assessed and their status (innocent or otherwise) will be determined.
The human rights principle is simple: try or release.
Incompatibility of continued detention with the right to health and well-being
Secondly, at the very least, the State ought to ensure that their conditions of detention are regulated at all times to ensure that their right to health is safeguarded. Yet, these same governments which shut down courts for the fear of the spread of the virus have not taken cognisance of the living conditions of pre-trial detainees, let alone those of convicted persons inhabiting places of detention where the spread of such a communicable disease is but inevitable.
Serious issues related to the right to life, health and protection against torture arise for detainees. Prisons are hotbeds for the spread of an infectious disease like COVID-19: barring perhaps a handful of financially secure countries, prisons are not exactly synonymous with space, privacy or hygiene. They are instead ‘epidemiological pumps’, where unsanitary conditions, poor ventilation, overcrowding and poor access to health care, combined with the difficulties of isolating prisoners from one another, mean that the introduction of the virus would be catastrophic.
Obvious physical health implications aside, the mental anguish and anxiety faced on a constant basis by detainees who cannot control the number of people they come in daily contact with, or even maintain the level of hygiene standards required to evade contracting COVID-19, is a major form of torture. While all prisoners are victims of such human rights violation, pre-trial detainees are particularly affected because they are not only lumped together with convicted prisoners and exposed to the same health risks (in contravention of the presumption of innocence), but they are also additionally aware that their charges are not likely to be determined in the foreseeable future, leaving them in detention for an unknown period of time, especially during such stressful times.
Even R Kelly, notorious R&B singer charged with several counts of sexual misconduct, sought bail for the duration of the pandemic, asserting that ‘[r]equiring people to reside in a custodial jail setting is tantamount to making them drink poison’. Unsurprisingly, Kelly has been denied bail on this ground, despite his sensitive status as a pre-trial detainee.
These fears, however, clearly held merit. Even in a country as wealthy as the USA itself, reports indicating that prisons having long been ‘ticking time bombs’ which have now exploded, are on the rise. Similarly, France has been faced with public criticism over the deplorable conditions in its prisons, which were identified as breeding grounds for the virus.
It is no surprise then that a country like India, having a nationwide occupancy rate of 114% in its prisons, and now one of the countries worst-struck with coronavirus, is staring disaster in its face.
These reports neatly show how basic human rights of prisoners have been consistently violated almost uniformly across the world – a problem that did not start with the coronavirus pandemic, but was only exposed by it.
Often overlooked obligations vis-à-vis detainees: criminal justice reforms required
With or without the threat of COVID-19, the treatment accorded to pre-trial detainees in prisons in prisons across the world often itself violates several human rights. Though less obvious than violations of fair trial rights, such concerns related to degrading treatment and health of detainees are equally important for ensuring a just criminal system.
States owe prisoners a special obligation of ensuring their well-being because they are submitted to the absolute control of the State. By taking custody of these detainees, the State undertakes the responsibility of arranging its prison facilities in a manner that is conducive to their physical and mental health, treating them in accordance with their inherent dignity and value as human beings’. This includes ensuring sanitation, proper food, ventilation, exercise, and access to recreational activities every day. The European Union has an additional obligation to ensure that prisoners have a minimum of 7 sq. m. of living space in their cells, less than which would be regarded as a form of torture.
Pre-trial detainees, especially, must be kept separate from convicted prisoners, accommodated singly in separate rooms, and allowed confidential communication with their legal advisers, in accordance with the presumption of innocence.
Yet, it would not be a stretch of the imagination to say that these basic human rights guarantees have rarely ever been enforced by States. Where the application of a human right as obvious as access to proper medical facilities in places of detention is considered non-existent or inadequate, demanding for 7 sq. m. of living space or sanitation is only likely to invoke a laugh amongst prison authorities. Prison authorities are not to blame, however: allocation of funds to prisons has a huge role to play.
Yet, in my opinion, the real problem lies in the organization of the criminal justice system itself. Rather than the last measure, imprisonment post-conviction is the first and sometimes only measure, even for petty crimes. With the overcrowding of prisons being a worldwide problem, it is difficult to see how such basic human rights can possibly be guaranteed by prison authorities.
Combating the pandemic in prisons
Coming back to the pandemic, the above problems, as discussed, have been aggravated by the threat of the spread of the virus.
The UN, WHO and the European Union alike have long advised States to devise alternatives to custodial measures, and reduce pre-trial detention to combat overcrowding. These must be urgently put in place if States seriously plan to safeguard prisons from COVID-19. Prison cells need to be restored to their intended capacity before the virus spreads through prison premises.
Of course, this raises many practical issues, as only a handful of governments possess the logistical expertise and finances required to either release defendants from prison during the entirety of the pandemic (especially if such prisoners require electronic tags), or arrange their prison facilities in a manner that conforms to the WHO/UN/EU rules, especially the infection prevention and control (IPC) measures envisaged.
The rising danger in prisons seems to have sidelined such concerns for practicality, however, as swathes of prisoners have been released in several countries, including Iran, Turkey, France, Ethiopia, the UK, Ghana – and now even India. The most common groups of prisoners so released have been pre-trial detainees, vulnerable prisoners, and those convicted of petty crimes. While most of them have been temporarily released, many have even been pardoned.
It is deplorable that it took a global pandemic for States to finally wake up to the inhumane conditions of detention they subject their prisoners to. Whether or not this situation creates a lasting policy change with regards to overcrowding and living conditions in prisons remains to be seen.
The hasty spurts of the release of prisoners to evade further escalation in places of detention raise two major questions that I leave you with:
First, if the primary step in reducing the overcrowding of prisons is to release pre-trial detainees, what does this say about the conditions of detention this class of prisoners are subjected to and their presumption of innocence?; and
Second, if these prisoners could be released now on bail without any accompanying security safeguards, did they need to be detained at all?
I hope that for the time being, these questions are sufficient responses for those in doubt about the need for human rights advocacy for criminal defendants.
* The author is Legal Assistant at Global Rights Compliance LLP/ United Nations International Residual Mechanism for Criminal Tribunals. She previously worked in the Public International Law and International Arbitration department at Withers LLP, London. She completed her LLM from the University of Cambridge, and her LLB from Gujarat National Law University.
[All views expressed in this article are personal to the author and do not represent that of any organization.]
 See for e.g. the United Kingdom, where the Crown Prosecution Service (CPS) is under pressure to record a certain number of convictions per crime.  See Wayne Jordash QC, ‘Insiders: The Special Court For Sierra Leone’s Dirty Laundry’ (Justice Info), 30 April 2020.  Read Judge Pikis’ dissent in Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/6-1432, Judgment on the Appeals of the Prosecutor and the Defence Against Trial Chamber I's Decision on Victims' Participation of 18 January 2008, 11 July 2008, Judge Pikis’s Dissent, paras. 14-15. Personal note: The International Criminal Court’s (ICC) inclusion of victims in the various stages of the criminal proceedings forces the defendant to face not only the prosecution’s claims, but also hundreds of victim submissions – and in some cases victim evidence. This potentially turns the concept of ‘equality of arms’ on its head, and may even raise questions on the presumption of innocence. Although many civil countries do allow for victim participation in domestic trials, it would not be totally unreasonable for a defendant to be concerned about prejudice to his fair trial rights by allowing victims to raise their own accusations in court in addition to those raised by the prosecution.  Articles 14(1) and 14(3)(c) of the ICCPR; Article 10 of the UDHR; Article 6(1) of the ECHR.  See Article 4(1) of the ICCPR; Article 15(1) of the ECHR.  See the principles underlying Article 9 of the ICCPR, Article 9 of the UDHR, and Article 5 of the ECHR.  See OHCHR, Human rights in the administration of justice, A/HRC/42/20, 30 July 2019, para. 35; ECtHR Jurisconsult, Guide on the case-law of the European Convention on Human Rights: Prisoners’ rights, 31 December 2019, para. 99.  As a defence lawyer, I naturally gravitate towards the human rights violations facing defendants undergoing detention, but convicted prisoners face the same violations in several regards, especially threats to their lives owing to the living conditions of prisons.  Prof. Richard Coker, Report on Coronavirus and Immigration Detention, 17 March 2020, pp. 12-16.  See R Kelly’s bail application before the US District Court of Illinois (Eastern Division), 26 March 2020.  See B Hineman and M Timms, ‘Tennessee prisons were 'ticking time bomb' ahead of COVID-19' (Tennessean), 5 July 2020; The Marshall Project, ‘A State-by-State Look at Coronavirus in Prisons’, 1 July 2020; ‘COVID-19 cases explode in California prison’ (The Jakarta Post), 1 July 2020; T Williams et al, ‘Coronavirus Cases Rise Sharply in Prisons Even as They Plateau Nationwide’ (The New York Times), 16 June 2020.  See J Gaubert, ‘Coronavirus: Inmates in France hit out over prison hygiene amid COVID-19 fears’ (Euronews), 26 March 2020.  See A Bhattacharya, ‘Some Indian states have more than twice as many prisoners than they can house’ (Quartz India), 7 November 2019.  See for instance, S Saigal, ‘Jails turn into hotbeds of disease’ (The Hindu), 25 May 2020; ‘COVID-19 count in Delhi prisons stands at 141’ (LiveMint), 5 July 2020;  See Ms. Yekaterina Pavlovna Lantsova v. The Russian Federation, Human Rights Committee, Communication No. 763/1997, 26 March 2002, para. 9.2; OHCHR, Human rights implications of overincarceration and overcrowding, A/HRC/30/19, 10 August 2015, para. 17; United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12), E/C.12/2000/4, 11 August 2000.  See United Nations General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), A/RES/70/175, Rules 1, 12-16, 19-22, 61-66 and 105;  See Kadikis v Latvia (No. 2), ECtHR, Application No. 62393/00, 4 May 2006, para. 52. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment specifies a minimum living space (excluding sanitary facilities) of 4 m2, which roughly equates to 7 m2 of space including furniture and beds (this is what the European Court of Human Rights has generally seen as reasonable): see 26th General Report on the CPT's Activities (2016), 2017, para. 56  United Nations General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), A/RES/70/175, Rules 111-113 and 120.  OHCHR, Human rights in the administration of justice, A/HRC/42/20, 30 July 2019, para. 29.  See WHO, Preparedness, prevention and control of COVID-19 in prisons and other places of detention, 15 March 2020, pp. 3-5; OHCHR, Human rights in the administration of justice, A/HRC/42/20, 30 July 2019, para. 65; European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Statement of principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19) pandemic, 20 March 2020, para. 5.  For e.g. adequate testing, treatment and care in places of detention; effective segregation of vulnerable prisoners at high risk from coronavirus from other detainees; and regulating the entry of prison staff or newly admitted individuals. See WHO, Preparedness, prevention and control of COVID-19 in prisons and other places of detention, 15 March 2020, pp. 1-2, 5.  See ‘Coronavirus: why swathes of prisoners are being released in the world’s most punitive states’ (The Conversation), 20 April 2020; B Dodman, ‘As France releases thousands, can Covid-19 end chronic prison overcrowding?’ (France 24), 27 April 2020; ‘Coronavirus: Up to 450 prisoners to be released early’ (BBC), 4 May 2020; A Abu-bashal, ‘Ghana pardons 794 prisoners to curb spread of COVID-19’ (Anadolu Agency), 3 July 2020; S Modak, ‘Maharashtra: Month on, only 10,000 inmates released on temporary bail, emergency parole; prisons still overcrowded’ (Indian Express), 25 June 2020.