Pre-trial detention is when a person is held by a governing body for an offense committed against the laws of the state prior to a trial. Pre-trial detention remains a problem around the world despite international standards and domestic laws cautioning against pre-trial detention. Many times prisoners are held for years on end without any hope or opportunity for trial. While there are multiple issues from pre-trial detention ranging from inhumane conditions to the length of detention, this page will focus primarily on the determination and length of detention.
International Standards for Pretrial Detention
Under the Universal Declaration of Human Rights, every person charged with a crime has the right to a presumption of innocence until proven guilty. Therefore, pretrial detention is applicable only when: 1) there are reasonable grounds to believe the alleged perpetrator committed a crime, 2) there is a danger the alleged offender will flee or 3) a danger that the course of justice will be seriously interfered with if the alleged offender is free (8th UN Congress on the Prevention of Crime and Treatment of Offenders). UN Standard Minimum Rules for Non-custodial Measures stipulates that governments should use pretrial detention as a last resort in criminal proceedings and only for the protection of society and the victim. Additionally, alternatives should be employed as early as possible. Pretrial Detention should last for only as long as is necessary and should be administered humanely. The offender has the right to appeal when detained pretrial.
Organic Genocide Law: contains a section pertaining to confessions in exchange for reduced sentences. Confessions are encouraged by the law, but enforcement is somewhat arbitrary. More than 20,000 confessions have taken place since 1994, but only a small number have been processed due to the disconnect between the law and officials implementing the law. 
Gisovu Project: the process of taking elderly, ill, persons without files, previously acquitted, or sentenced to a term outside of prison to their village to allow the villagers to air any grievances and make complaints. This is an effort to determine whether continued detention is needed. Approximately 30-40% of prisoners who were investigated in this manner were released.
Gacaca Courts: grassroots justice. Combines participatory justice and reconciliation to form a local level court to judge genocide detainees. Gacaca law provides reduced sentences for cooperation and credits time served. However lawyers are not able to officially participate. The exclusion of lawyers presents a problem for the accused who are not aware of their rights. The public perception of corruption and wrongdoing within the Gacaca system is troubling, particularly because the system should work to alleviate the massive amounts of people held for years without trial.
Local courts continue to try genocide related cases and for the most part meet international standards at trial, however the length of pretrial detention remains an issue.
Practical Tips for Lawyers
When determining whether your client has been held in pre-trial detention unlawfully it is important to weigh many factors. Use the questions provided below to determine whether you have a good claim for unlawful pre-trial detention.
1) How do your country's laws reflect the UN's requirements of pretrial detention only when detention is lawful, reasonable and necessary? Do the laws simply reflect the UN mandates or are they substantially different?
2) How are the above terms "lawful, reasonable and necessary" interpreted by the justice system where your client is being held?
3) How long has your client been held and what is the average period of pretrial detention there?
4) Does your judicial system permit prisoners to be released on bail or their personal recognizance?
- a) If so, do you have a good claim for persuading a judge to release your client on bail or personal recognizance pending trial?
- b) How can your client obtain bail?
5) If there is not bail or release on personal recognizance, or they are rarely granted, what procedures are available to challenge the prolonged detention of your client?
- a) Plead Guilty (a typical remedy in common law systems): If the client confesses, how quickly will their confession be processed? And will they receive credit for time served?
- b) Interlocutory appeal of bail ruling (immediate pretrial appeal to a higher court)
- c) Motion to Dismiss for lack of speedy trial
- d) Dismissal of charges in the interest of justice
- e) Nullity Procedure
- f) Transfer of Venue to a court with a smaller docket. Perhaps a transfer to an alternative means of justice, such as the Gacaca courts in Rwanda?
Answering these questions on behalf of your client is a good way to measure whether the pre-trial detention is unlawful and additionally whether your client's detention can be contested. However, as a good defense attorney, you should almost always challenge the legality of pre-trial detention, even if you believe that your client will lose.
- US State Department: Country Reports. Rwanda, 21 June 2010.