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). 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). Challenges to the legality of treatment or conditions in prison (under administrative or constitutional law). 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: This right is non-derogable and therefore cannot be suspended during emergencies such as armed conflict or" terrorist incidents". 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. But it is understood to mean "as expeditiously as possible" (so hours or days rather than weeks). Again, there is no standard on what constitutes “without delay” and it must be assessed on a case by case basis. The judge should hear challenges to the legality of detention without delay. 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. In some countries, habeas corpus extends to reviewing allegations of illegal treatment of persons who have been legally detained. This applies to all detainees (persons detained criminally or administratively, for example in relation to public order offences or because of their immigration status). 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. 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.
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. This will enable the detainee to report any ill-treatment or lodge other complaints about their detention. 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. 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). 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.
Developing Guidelines on non-coercive Interviewing and Safeguards.Guidance: Monitoring Places of Detention through the COVID-19 Pandemic.The OPCAT: torture prevention in practice.
The European Committee for Prevention of Torture (CPT).Interview with Catalina Devandas: Special Rapporteur on the Rights of Persons with Disabilities.Preventing torture – From an idea to a global reality.Prevention of torture and ill-treatment in police custody.Parliamentarians visiting immigration detention centres.Expert meeting on torture-tainted information.Interview with Jeehan Mahmood – Maldives.World Cup: Preventing torture in Rio de Janeiro (2014).Interview with Erwin James, United Kingdom.Interview with Boubou Diouf Tall, Senegal.Children’s vulnerabilities in detention (Jean-Jacques Gautier NPM Symposium 2014).Addressing vulnerabilities in LGBT persons in detention (Jean-Jacques Gautier NPM Symposium 2015).Preventing torture in Africa: Lessons and experiences from NHRIs.Monitoring psychiatric institutions (2016 Jean-Jacques Gautier NPM Symposium).Changing Police Mindsets: From Coercion to Justice.Protecting LGBTI persons deprived of liberty: a discussion with Victor Madrigal.