Alternatives to Pretrial Detention

The parlous situation to be found in pretrial detention centers in many countries where the Open Society Institute (OSI) is present provided the initial impetus for the Justice Initiative to select pretrial detention as a thematic program area of focus.

International standards require that pretrial detention be used only if there is a demonstrable risk that the person concerned will abscond, interfere with the course of justice, or commit a serious offence. They also mandate the widest possible use of alternatives to pretrial detention. Moreover, certain international standards provide clear guidance as to the manner in which judicial authorities ought to assess whether or not it is necessary for persons awaiting trial to be detained. This guidance can be used as a template for projects to address constructively the excessive use of pretrial detention.

As a first step, it is essential to identify and highlight the gaps between a state’s de jure and de facto compliance with international standards in this area. A clear, country-specific understanding of the real process through which persons come to be placed—and remain—in pretrial detention provides a foundation for project activities (such as bail supervision programs, assistance to judicial officers, or improved legal aid) to target country-specific lacunae, such as the absence of available alternative disposals or of legal representation at pretrial hearings.

Paradoxically, many of the states which are the “worst offenders” in terms of excessive use of pretrial detention have enacted—and purport to apply—national legislation which closely mirrors international presumptions against the use of pretrial detention and in favor of the use of alternative measures. This is the case in three former Soviet Union countries in which the Justice Initiative is pursuing (in Latvia and Ukraine) pretrial detention projects or (in Kazakhstan) a juvenile justice project with a significant pretrial detention component. With respective incarceration rates of 395, 406 and 495 per 100,000 of their populations, Latvia, Ukraine and Kazakhstan are currently ranked as the countries with, respectively, the 23rd, 13th and 5th highest prison population rates in the world.

Pretrial detainees in these countries are often held in cramped conditions, with little or no out-of-cell time, and no meaningful activities when they are out of their cells. Standards of hygiene and health care in pretrial detention establishments are often poor, facilitating the spread of transmissible diseases through the prison population—and into the population at large when infected prisoners are released.

Although they differ from each other in important respects, all three countries share a post-Soviet inheritance of poor prison conditions, gross over-use of pretrial detention and poor availability of credible alternatives to incarcerating persons awaiting trial. The experience gained through ongoing efforts to promote alternatives to pretrial detention in these countries will assist the Justice Initiative to develop projects in other countries with similar needs.