Commissioners: Rosa María Ortiz, Dinah Shelton, Rodrigo Escobar Gil, José de Jesús Orozco Henríquez

Participants: Instituto de Defensa Legal (IDL), Centro de Estudios Legales y Sociales (CELS), Justiça Global, Instituto de Estudios Comparados en Ciencias Penales de Guatemala (ICCPG), Asociación por los Derechos Civiles (ADC), Pastoral Carcerária do Brasil, Fundación para el Debido Proceso Legal (DPLF), Instituto de Estudios Comparados en Ciencias Penales y Sociales (INECIP), Fundación Construir, DeJusticia, Centro de Investigación Drogas y Derechos Humanos (CIDDH), Instituto de Justicia Procesal Penal, A.C., Fundación Paz Ciudadana, Instituto Tierra, Trabalho e Cidadania (ITTC), Conectas, Brasil, Sou da Paz, Associação pela Reforma Prisional – Centro de Estudos de Segurança e Cidadania da Universidade Candido Mendes, Instituto de Defesa do Direito de Defesa (IDDD), Instituto dos Defensores de Direitos Humanos, Centro de Estudios para la Justicia y la Seguridad Ciudadana (CERJUSC)

State: Regional

Throughout the Americas, a large percentage of people currently imprisoned are held for excessive periods of time before being tried for their alleged crimes. On November 1, 2012, the Inter-American Commission on Human Rights (IACHR, Commission) held a thematic hearing on the use of pretrial or preventative detention. Several civil society organizations conducted studies on this issue and presented their findings to the Commission. Two key issues emerged from these studies: the security policies, which are leading to increasing numbers of detainees, and the lack of judicial independence in determining who should be held in preventative detention.

Each country in the region has different laws regarding preventative detention, but the petitioners stated that all countries need reform in this area. They explained that although states may be correct in arguing that preventative detention can be necessary for safety, it should be a last resort. The petitioners have turned to the Commission because it has the authority to hear complaints against all Organization of American States (OAS) Member States. Under Article 26 of the American Declaration of the Rights and Duties of Man, applicable to all OAS members, and Articles 5 and 8 of the American Convention on Human Rights, binding only on States Parties, governments are obligated to provide due process of law in a reasonable amount of time and humane treatment to detainees. Several issues related to preventative detention do not comport with these provisions.

In response to societal demands for greater security, countries in the region have enacted policies to increase preventative detention. These penal code reforms increase the severity of penalties for crimes, with little evidence that they actually limit crime. Petitioners argued that the initiatives counter previous reforms and backtrack on progress made in penal code reform. Increasing penalties disregards the current human rights situation in prisons, which are severely overcrowded and increasingly violent. These policies run counter to the standards set by the Inter-American System. They pointed to a particularly bad practice by which countries provide poor quality justice to detainees in order to reduce the number of people in pretrial detention, condemning detainees through bad trials.


Petitioners further argued that women, children, and indigenous people are disproportionately affected by preventative detention. There are fewer facilities for women, so they are often detained farther from family, and often do not receive necessary medical care. Most women detained are pretrial, and many are first-time offenders. Article 37 of the Convention on the Rights of the Child states that children should only be detained when absolutely necessary; however, many children are detained regardless of necessity, especially those from impoverished backgrounds. Prison facilities for children are lacking, so children are often detained with adults and many countries are reducing the minimum age of responsibility, so more children will be detained. Indigenous populations are often not considered in penal codes, as their cultural practices and courts are not recognized, causing several problems, including a lack of defense lawyers and services taking these cultural differences into account.

The civil society organizations requested that the Commissioners promote and support their petition for a drafting of basic rules regarding proper imprisonment in the Americas in the Permanent Council of the OAS. They further requested the Commission to report regularly on the issue, including effects on women and indigenous people.

Because the hearing ran longer than the allotted time, Commissioners posed several questions to the petitioners and requested that they submit answers in writing. Commissioner Rodrigo Escobar Gil asked if petitioners have considered how the inefficiency of justice systems could affect preventative detention. He and Commission President José de Jesús Orozco Henríquez asked if the organizations have identified any good practices regarding legislation, case law, or judges’ application of preventative detention to bring it in line with international standards. Orozco Henríquez also asked for information regarding public defender offices that have defended people whose rights have been violated in penal systems. Commissioner Dinah Shelton asked about bad practices, and if the organizations had documented any good practices of separating detainees and convicted people. Commissioner Rosa María Ortiz was interested in the role of the media in this issue, which the petitioners explained is problematic because the media misinforms and influences the public to assume that a judge not imposing preventative detention is not serving justice. She also commented on the effects of preventative detention on families when women are detained and their children suffer, noting that the interests of children should be considered when detention of a mother is not entirely necessary.

The Commissioners accepted the organizations’ petitions, which will be discussed as soon as the OAS plenary goes back into session. They ended by stating that they will continue to supervise preventative detention and hope that there will be a resolution to this issue soon.