A/HRC/4/40
page 26
69.
Moreover, the Working Group frequently finds detainees in pretrial detention, who have
been accused of no serious offence. They are kept in custody only to ensure that they will appear
before the judge. Therefore, these individuals are not detained because of the real danger that
they could represent to the society but because States are simply not capable of guaranteeing that
they will appear in court.
70.
The increase in the number of detained persons, as well as in the number of proceedings
pending before the courts, also has a negative effect on the administration of justice and its
operators. The judiciary often lacks financial and technical resources, which frequently leads to
ineffective administration of justice and to insufficient control of cases. For instance, in many
lawsuits, the Working Group noted that the detainees had never been directly questioned by the
judge in charge of their cases. Like the judges, defence lawyers are also swamped and are
confronting a serious increase in their workload. Many have neither the technical nor the
financial and management resources to prepare their cases adequately and exercise their defence
in adequate conditions.
71.
The Working Group wishes to point out that the systems of legal aid, i.e. public defence
lawyers and lawyers appointed and paid by States in order to ensure a basic defence to the
accused (depending on the legal aid system of the country), do not work satisfactorily
everywhere.
72.
Consequently, the guarantees established by article 14 of the International Covenant on
Civil and Political Rights, are not being appropriately fulfilled in several States. These
guarantees include the right to have adequate time and facilities for the preparation of one’s
defence and to communicate with counsel of one’s own choosing; the right to be heard by a
competent, independent and impartial judge and the right to interrogate witnesses during the
trial.
V. CONCLUSIONS
73.
The Working Group welcomes the cooperation it has received from States in the
fulfilment of its mandate. In the great majority of cases in which the Group adopted an Opinion
during its three sessions in 2006, the Government concerned had provided submissions regarding
the case.
74.
The Working Group welcomes the cooperation on the part of Governments that extended
invitations to the Group for visits. Thanks to this cooperation, in 2006 the Working Group was
able to visit Ecuador, Honduras, Nicaragua and Turkey. During its forty-seventh session, the
Working Group made a revision of the list of countries it had requested to visit on official
mission. It decided to persist in its requests to receive invitations to visit Afghanistan, Angola,
Ethiopia, Guinea-Bissau, India, Italy, the Libyan Arab Jamahiriya, Turkmenistan and the
United States of America, and to receive specific timing proposals for its visits to Colombia,
Equatorial Guinea and Sierra Leone.
75.
In a new Legal Opinion, the Working Group concludes that the transfer of detainees
without procedural safeguards is in conflict with international law. Governments should stop all
forms of rendition and return to the legal proceedings of extradition, deportation and expulsion.
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