A/HRC/13/39
3.
Lack of prevention
50.
All too often, the safeguards required by international human rights law are either
not foreseen or not effective.
(a)
Notification and detention records
51.
The rationale behind the notification and proper recording of arrest and custody is
that open knowledge about the arrest and the place of detention provides some protection
against abuse. By way of notification, it is established that the person is under the authority
of the State, which assumes the duty of care. Unrecorded places of detention are not
permissible. Proper record-keeping is a crucial contribution to establishing accountability in
case of allegations of abuse.
(b)
Length of police custody
52.
Detainees are at a high risk of being ill-treated during the first hours of deprivation
of liberty. Suspects mostly find themselves in the hands of the officers in charge of
investigating the crime of which they are accused. The officers therefore have an interest in
obtaining a confession or other relevant information. In order to keep this critical phase as
short as possible, international human rights law requires the minimization of the period
before a person is brought before a judge or another officer authorized by law to exercise
judicial powers. However, suspects are frequently held in police custody for much longer
than international human rights law allows, sometimes for weeks or months, and find
themselves in a situation which is generally dominated by a feeling of vulnerability and
fear. In many of the police stations the Special Rapporteur has visited, there was a palpable
level of fear which manifested itself inter alia in the strong reluctance of detainees to speak
with him.
(c)
Inadmissibility of evidence obtained under torture
53.
The inadmissibility of evidence obtained under torture is one of the most crucial
safeguards in the criminal justice system. Its purpose is twofold: firstly, given that the vast
majority of torture is inflicted in the course of criminal investigations with the purpose to
extract a confession, the safeguard intends to remove a prime incentive for torture;
secondly, evidence obtained under torture is highly unreliable. Declaring such evidence
inadmissible will help to ensure that no innocent person is convicted. Whereas, legally,
most States visited seem to comply with this provision by and large, confessions and other
evidence obtained under torture are more frequently admitted in legal proceedings. In most
of the countries visited, the Special Rapporteur received a very high number of related
allegations, which were convincingly corroborated by representatives of civil society,
lawyers, local human rights experts and others. Apart from the procedural weaknesses
mentioned in this section, one of the main reasons for this phenomenon appears to be the
almost insurmountable credibility deficit with which suspects are confronted. In sharp
contrast to the presumption of innocence, they are a priori believed to be guilty and raising
torture allegations only in order to evade justice.
(d)
Access to a lawyer and legal assistance
54.
Given that most cases of abuse take place during the very early stages of detention,
immediate access to an independent lawyer is crucial. In many countries, however,
detainees are arrested, interrogated and indicted without having been able to access counsel.
Even access to a lawyer at a later stage remains a hypothetical option for most detainees
since they lack the financial resources to pay for it. Since persons from poorer social strata
make up the majority of detainees, the inability to effectively access legal aid affects the
majority of persons deprived of their liberty. The lack of legal counsel is in sharp contrast
GE.10-10042
13
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