Tackling human rights violations of pre-trial detainees through a call for international standards

This impact story is part of a series to celebrate the extraordinary pro bono projects undertaken by legal teams to support NGOs and social enterprises with the support of TrustLaw. All projects mentioned in this series are nominated for this year’s TrustLaw Awards. Find out more.”¯ 

The Global Prison Trends Index of 2022, affirms that 1 in every 3 persons imprisoned world-wide is a pre-trial detainee and as per the World Prison Brief, pre-trial detainees make up an average of 30% of the global prison population.  In many instances, persons awaiting trial may be held in detention for years, sometimes longer than the prescribed sentences. This can adversely impact access to healthcare, economic opportunities and well-being of the detainees and their families, thus violating fundamental human rights. It also lends itself to the problem of prison overcrowding further exposing detainees to disease.

The Commonwealth Human Rights Initiative (CHRI) which focuses on prison and police reforms and access to information across Commonwealth countries, found numerous gaps in legal provisions across 54 Commonwealth jurisdictions which are inadequate in safeguarding the rights of pretrial detainees. CHRI estimates that as much as 16.7% of the world’s prison population is in the Commonwealth countries and about 1.4 million persons await trial while the average period of detention increases each day. For its 2022 report to the Commonwealth Heads of Government, CHRI decided to bring light to the issue of pre-trial detention and call upon the Heads of Governments to collectively take measures to reduce pre-trial detention.

CHRI approached TrustLaw, the Thomson Reuters Foundation’s global pro bono service, for legal assistance to understand the existing legal frameworks and document existing safeguards against pre-trial detention currently available in member states of the Commonwealth. CHRI requested research on the legal provisions pertaining to arrests, legal representation, bails, access to legal aid, and review procedures for pretrial detention cases.

TrustLaw responded to this request and connected CHRI with legal teams from K&L Gates LLP, Allen & Overy LLP, Shearman & Sterling LLP, and Nyoh Law Chambers. K&L Gates acting as the coordinating law firm, further facilitated connections to local counsels in 47 Commonwealth countries. This collaboration, through TrustLaw, was the first of its kind undertaking in the space of legal pro bono.

The resulting research formed the basis of CHRI’s report, “Guilty till proven innocent? Safeguarding the rights of pre-trial detainees across the Commonwealth”. The report builds on existing research, with a special focus on the Commonwealth and identifies gaps in substantive and procedural safeguards against international standards. As per Madhurima Dhanuka, the lead author of the report, “This report calls upon the Commonwealth Heads of Government to take note of these findings and take all necessary remedial actions that will enable their Governments to prevent the extensive use of pre-trial detention.”

On the impact of the connections and research facilitated through TrustLaw, Madhurima, also the Programme Head of Prison Reforms at CHRI said “In India, we have used the findings in our own advocacy for reducing pre-trial detention and successfully advocated with the National Legal Services Authority in India to conduct a campaign for immediate review and release of pre-trial detainees in India. This led to the release of over 24,000 prisoners in one and a half months since the campaign. The research has helped us immensely in framing our future interventions in this area, providing us with examples of good legislative provisions that can be effective in reducing the use of pretrial detention.”

In addition to the mammoth undertaking, the COVID-19 pandemic and consequent lockdowns posed significant challenges. Camilla de Moraes from K&L Gates observed, “There were further challenges due to the fact that the project spanned a long period of time, and when we came to verify the accuracy of the information in the intervening period between the questionnaires being received and the report being published, inevitably there had been personnel changes in a number of the local firms, and it was not always possible to connect with the person who had conducted the initial research.”

Despite the hurdles, Camilla concludes “It was personally very rewarding to be involved in such a project and to know that if the relevant decisionmakers (sic) implement the recommendations of the report, the impact will be significant and long-lasting. It was also wonderful to have the opportunity to work on a truly global project, spanning all 54 (at the time) of the Commonwealth countries.”   

This impact story has been prepared for information purposes only. It is neither legal nor professional advice. Neither the law firm(s) and/ or lawyers that generously contributed to pro bono research nor the Thomson Reuters Foundation, will accept responsibility or liability for losses that may result if you rely on the information contained in this impact story or the associated Report. Instead, we urge you to seek legal and other professional advice specific to you or your organisation’s circumstances.

Except where otherwise stated, the views expressed in this impact story or the associated Report should not be construed to reflect the views of the law firm(s) and/ or lawyers who contributed to the research nor the Thomson Reuters Foundation who supported our TrustLaw member Commonwealth Human Rights Initiative with their work on this research.