Pre-Trial Detention in National and International Law and Practice: A Comparative Synthesis and Analyses
Intersentia, pp. 3-46, 2012
PRE-TRIAL DETENTION: HUMAN RIGHTS, CRIMINAL PROCEDURAL LAW AND PENITENTIARY LAW, COMPARATIVE LAW, P.H.P.H.M.C. van Kempen, ed., Cambridge, 2012
46 Pages Posted: 28 Nov 2012
Date Written: July 1, 2012
It is estimated that in the course of a year approximately 10 million people will pass through pre-trial detention. Although no adequately functioning criminal justice system can presently do entirely without detaining any suspects, pre-trial detention thus remains problematic in the context of human rights (e.g., the right to liberty, the presumption of innocence and often also the right to humane treatment), the detainee’s family (e.g., psychologically, socially and financially) and society (e.g., financially and economically). This paper therefore offers a wide variety of topics that are relevant to pre-trial detention.
After the introduction (I) the paper focuses on the influence on national law and practice of international human rights norms and national constitutional provisions that are relevant to pre-trial detention (II). Subsequently, the contents, scope and effect of these relevant human rights norms and of national criminal procedural law regarding pre-trial detention in various countries will be examined (III). The fourth part of the paper discusses both international and national standards for the actual conditions of detention, detention facilities and the rights of detainees (IV). The paper further discusses possibilities to apply alternatives to detention, such as bail and electronic monitoring (V), before finally offering conclusions (VI).
The paper – which constitutes the introductory synthesis and analyses of a book in the series of the International Penal and Penitentiary Foundation (IPPF) – purposes to offer a comparative synthesis of the national systems of twenty one States from around the world against the background of international human rights norms. The analyses focus on possible correlative relationships between the acceptance of international and constitutional fundamental rights norms, the quality of criminal procedural and penitentiary law, and rates of pre-trial detention and the application of pre-trial detention in practice. It not only examines whether and how international human rights standards on detention are influencing national law and practice, and the extent to which international norms are suitable to do so, it also tries to reveal strengths and weaknesses of domestic law systems as such.
Keywords: pre-trial detention, human rights, criminal procedural law, conditions of detention, alternatives to detention, comparative law
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