A/HRC/30/19
IV. Addressing overincarceration and overcrowding and their
human rights implications
A.
Need for a proactive and holistic approach
44.
Overincarceration and overcrowding cannot be tackled overnight, and the
complexity of these phenomena requires a combination of legislative, administrative,
political and economic measures, including a comprehensive policy and an action plan to
implement it. This view is shared by national institutions,183 regional mechanisms184 and
international bodies.185 Both regional and international bodies have pointed out that, while
measures such as the construction of new and the renovation of existing detention facilities
may provide an immediate, short-term relief to the overcrowding problem, they have not
been found to constitute an effective and lasting solution.186
45.
As stated by the European Committee for the Prevention of Torture, the only viable
way to control overcrowding is to adopt policies designed to limit or moderate the number
of persons sent to prison.187 In order to achieve this, the Committee argues in favour of a
more concerted, holistic and proactive approach, based on wide-ranging discussions
involving all relevant parties, including parliamentarians, prosecutors, judges and
representatives of monitoring bodies.188
B.
Right to challenge detention, assistance by legal counsel and access
to legal aid
46.
The Working Group on Arbitrary Detention, in its Draft Basic Principles and
Guidelines on remedies and procedures on the right of anyone deprived of their liberty to
bring proceedings before a court, has stated that the right to challenge detention is a judicial
remedy designed to protect personal freedom and physical integrity and that it is a nonderogable right.189
47.
The right to challenge detention is an important tool for addressing the problem of
overcrowding given accounts of individuals being detained illegally, or when the pretrial
detention limits are not respected or indeed prisoners are not promptly released after
serving their sentence.190 In order to make this right effective, every detainee must be able
to take proceedings before an independent court, without substantial delay,191 and to appear
before the court in person. Furthermore, the burden of establishing the legal basis, as well
183
184
185
186
187
188
189
190
191
16
See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/NCHR_Greece.pdf.
See Neptune v. Haiti, Inter-American Court of Human Rights Judgement (2008), para. 183, and
Council of Europe document CPT/Inf (2014) 31, para. 56; www.achpr.org/files/sessions/52nd/interact-reps/185/activty_report_prisons_eng.pdf, p. 22.
See S/2015/157, para. 26; A/HRC/25/71, paras. 41-42; CAT/OP/BEN/1, para. 158; CAT/OP/ARG/1,
para. 59; www.ohchr.org/Documents/Issues/RuleOfLaw/OverIncarceration/UNODC.pdf.
See www.achpr.org/files/sessions/37th/mission-reports/prisons2004/misrep_specmec_priso_southafrica_2004_eng.pdf, p. 64; CPT/Inf (2013) 35, para. 8; CPT/Inf
(2014) 31, para. 35; CAT/C/IRL/CO/1, para. 11; CCPR/C/BIH/CO/2, para. 11; A/HRC/25/60/Add.1,
para. 84; CCPR/C/URY/CO/3, para. 9; CAT/OP/MDV/1, para. 220.
See Council of Europe document CPT/Inf (2014) 13, para. 39.
See ibid., and www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/OSJI.pdf.
See A/HRC/30/37, para. 2, and Principle 4.
See CCPR/C/TUR/CO/1, para. 17, and
www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/QUNO.pdf.
See A/HRC/27/47, para. 16.
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