International standards provide that no one should be held in detention without being given the opportunity to be heard promptly by a judicial authority. There are two distinct but related rights in relation to access to a judge for persons who are detained in prisons: the first relates to detainees who are criminal suspects and the second concerns all detainees. As with other safeguards, detainees should receive information on these rights in a language they understand upon admission to the prison.
Access to a judge
International standards are clear that criminal suspects should only be detained in limited circumstances and as a measure of last resort, in line with the presumption of innocence. In deciding whether the person should be detained, a judge should assess whether there is reasonable suspicion that they committed the alleged offence and substantial reason to believe that they are likely to abscond, interfere with the course of justice (e.g. interfere with evidence) or commit a serious offence. The judge should only order detention as a last resort, if these conditions are met and alternative non-custodial measures have been pursued.
In reality, the legal framework and/or practice falls below international standards in many countries: judges tend to validate detention applications and pre-trial detention is used excessively. This contributes to prison overcrowding and has adverse effects on the rule of law, respect for rights in detention, as well as public health.
International standards provide that criminal suspects who are detained must be “brought promptly before a judge”, for a determination of the necessity to detain the person or not. According to the UN Human Rights Committee, this should happen within maximum 48 hours (General Comment 35). This time limit will usually be set in a country’s criminal procedure code. In the prison context, this right is most relevant for pre-trial detainees who were brought to the prison shortly after arrest.
All children deprived of their liberty should be brought before a judge within 24 hours after the time of their arrest.
Given that people are most vulnerable in the period immediately following their arrest and detention, the right of criminal suspects to be brought promptly before a judge is an important safeguard against torture and other ill-treatment. In addition to the fact that access should be “prompt”, the European Committee for the Prevention of Torture (CPT) has therefore stated that all persons detained by the police whom it is proposed to remand to prison should be brought before a judge to decide the issue, as this is a key moment when any ill-treatment in police detention can be brought to light (CPT standards).
To make this safeguard effective, it is important that the detainee is brought before the judge in person and has the opportunity to speak to the judge. This will enable the detainee to report any ill-treatment or lodge other complaints about their detention. It also enables the judge to assess the person’s appearance and demeanour for any indications of ill-treatment, in the absence of a formal complaint. The judge should record any allegations or indications of ill-treatment in writing, immediately order a forensic medical examination and ensure they are investigated by the competent authority.
International human rights law provides that all persons deprived of their liberty should have the right to challenge the legality of detention (sometimes known as habeas corpus) before a court. This applies to all detainees (persons detained criminally or administratively, for example in relation to public order offences or because of their immigration status). In some countries, habeas corpus extends to reviewing allegations of illegal treatment of persons who have been legally detained. In addition, in some (mainly Spanish speaking) jurisdictions, amparo writs may provide a remedy for the protection of detainees’ constitutional rights, broader than challenging the legality of detention.
The judge should hear challenges to the legality of detention without delay. Again, there is no standard on what constitutes “without delay” and it must be assessed on a case by case basis. But it is understood to mean "as expeditiously as possible" (so hours or days rather than weeks). As above, the court should hear the detainee in person in order to be able to respond to any allegations or indications of ill- treatment in detention. This right is non-derogable and therefore cannot be suspended during emergencies such as armed conflict or" terrorist incidents".
In addition to the safeguards associated with the right of detainees to access a judge (discussed above), the judiciary can exercise oversight over detention practices through its decisions on:
- Challenges to the legality of treatment or conditions in prison (under administrative or constitutional law). The United Nations Subcommittee on Prevention of Torture has pointed out that judicial control during the period of confinement - by judges other than those that determined the criminal charge - is crucial for due process and to ensure that detainees can invoke the standards protecting them (SPT 2013). In some jurisdictions, special judges are mandated to receive complaints regarding any aspect of the detention regime for persons serving a sentence (known as juges d’exécution des peines in francophone jurisdictions). Detainees may be required to first pursue avenues of administrative complaint.
- The application of due process rights which act as safeguards against torture or other ill-treatment for pre-trial detainees (e.g. access to a lawyer).
- Claims for compensation related to detention, e.g. for illegal detention or ill-treatment in detention.
- Criminal charges relating to the conduct of prison employees or detainees.
- In addition, judges in some countries have the mandate to visit places of detention (see Inspection mechanisms).
For these different types of judicial oversight of detention to be effective, it is necessary that the judiciary is independent and takes action without delay to uphold the rights of detainees. There are a number of reasons why this does not happen in all contexts, including:
- If the judiciary does not have the necessary professional distance from the authorities involved in detention, judges can become partial, taking “the authorities side” over the word and situation of detainees.
- Judges may not be aware of the serious nature of torture and other ill-treatment.
- The judiciary may face a lack of resources and an overload of cases, impacting on its ability to deal with cases thoroughly and in a timely manner.
The judicial control of detention of children is particularly important, given their vulnerability in detention to violence and abuse. The UN Committee on the Rights of the Child provides that no child who is arrested should be detained for more than 24 hours without a judicial order and recommends that the legality of pre-trial detention of children “is reviewed regularly, preferably every two weeks” (General Comment 10). Pre-trial detention for children should be strictly limited to a measure of last resort. Specialised juvenile courts should be established, with judges trained to understand issues of child psychology and development. Children should be given the opportunity to speak directly to the court and procedures should be adapted to ensure the child’s best interests and avoid possible harm.
Detainees should be informed in a language they understand about their right to access a judge. When exercising this right, detainees who do not understand or speak the language used by the court should be afforded an interpreter free of charge. Interpreters should be competent and have basic training in legal matters.
Persons with mental or learning disabilities may have difficulties accessing and representing themselves in court and informing the judge of issues relating to their treatment and conditions in detention. It is therefore particularly important that measures are taken to facilitate their prompt access to a judge and that they have access to a lawyer who can assist them.