Pretrial Detention Conditions Abroad

From Discriminatory Treatment to Prison Overcrowding, Pretrial Detention Conditions Abroad Are Often Far Worse Than They Should Be

While international law establishes standards for pretrial detention—and seeks to prevent pretrial detention in most circumstances—data suggest that around a third of the world’s prison population is awaiting trial. Pretrial justice reform efforts have been slow and largely unsuccessful, and pretrial detainees abroad continue to face harsh conditions while incarcerated in many countries.

Attorney Nick OberheidenInternational Litigation Team Lead

Under our modern legal system, incarceration is supposed to be a result of sentencing. Unless someone presents a flight risk or a threat to the safety of others, international law discourages holding foreigners in jail while they await their day in court. This is a fundamental aspect of due process, and it reflects the fact that, even after an arrest, a person is presumed innocent until proven guilty of a crime.

Yet, holding arrestees in detention facilities remains common, and pretrial detention conditions abroad are often poor.

In many countries, they can also be dangerous. While defendants released on their personal recognizance pending trial abroad have the opportunity to protect themselves, those who are held in detention do not. Far too often, defendants who are awaiting court appearances experience discriminatory treatment, violence, denial of access to healthcare, and other violations of their basic rights. There is often little that family members and legal aid organizations can do; and, in many cases, local officials and judicial officers will be either unwilling or unable to help due to concerns about their jobs or their own personal wellbeing.

In Many Cases, Foreigners Are Held in Pre-Trial Detention Because They Cannot Afford Bail

Under the local law of many countries, detainees can secure pretrial release if they can post bail. However, for many, bail is simply unaffordable. Bail reform acts in many countries have sought to change this; but, to date, relatively little has truly been done to make the situation better.

Even for those who have the financial resources to post bail, procedural and practical issues can result in being forced to remain in custody. While detainees in foreign countries have the right to engage with their home country’s embassy or consular authorities to arrange funds transfers with their families, evidence suggests that this right is frequently violated. In many countries, concerns about theft, bribery, and abuses of authority reduce the likelihood that transferring funds will actually result in detainees’ release as well.

In Some Cases, Unforgiving Pretrial Detention Abroad Can Have Devastating Consequences

Sadly, detaining people who have not received a final case disposition or been convicted of a crime can also have devastating consequences in some cases. There are far too many stories of individuals experiencing severe abuse, torture, or losing their lives while in custody without a conviction. When detainees are denied their basic rights—including their right to counsel—while awaiting court proceedings involving alleged offenses abroad, they can often face dangerous and deplorable conditions that put them at risk for long-term or fatal consequences.

What to Do if a Loved One Has Been Detained Abroad Pending Trial

If you have a loved one who has been detained abroad pending trial, you should act promptly. While you can contact the US embassy or consulate in the country where your loved one is being detained, you should also engage a lawyer to fight for your loved one’s protection. Our lawyers represent US citizens who are being detained in jurisdictions worldwide, and we can provide representation on an emergency basis when necessary.

Family members whose loved ones have been subjected to imprisonment while awaiting judicial proceedings overseas should:

1. Contact the US Embassy or Consulate in the Country Where Your Loved One is Being Detained

Embassies and consulates are overseas arms of the US government. They can provide various forms of assistance for US citizens who have been detained abroad (though they cannot directly facilitate a pretrial release). As a result, informing the local embassy or consulate about your loved one’s situation can be a good first step.

2. Keep Relevant Communications and Take Detailed Notes

If you have any text messages or other communications from your loved one related to his or her current situation, you should keep these to share with your lawyer. You should also be sure to keep copies of any communications you receive from the US embassy or consulate or from local authorities in the country where your loved one is being detained. You should take notes to record as many details as you can recall as well.

3. Remain Calm, But Act Promptly

While you are dealing with an extremely stressful situation, it is important to remain calm. You need to ensure that you are making informed and rational decisions with your loved one’s best interests in mind. With that said, it is important to act promptly as well. The sooner you seek help for your loved one, the greater the chances will be of securing your loved one’s release.

4. Let Your Loved One Know that You Are Working on Securing Help

If possible, you should let your loved one know that you are working on securing help. If you speak with your loved one, let him or her know that you are going through the process of seeking to secure his or her pretrial release. It is common for harsh detention conditions to cause anxiety, depression, and other adverse mental health effects, and knowing that help is on the way can make a huge difference. But, keep in mind that prison phones and emails may be monitored, and avoid sharing details unnecessarily.

5. Talk to a Lawyer as Soon as Possible

Since US embassies and consulates can only provide limited help in this situation, you should also talk to a lawyer as soon as possible. Specifically, you should talk to a lawyer who handles international criminal matters. These are complex matters that can involve a mix of international and local law; and, while your loved one may need to hire a local lawyer to provide representation in court, engaging a US lawyer to advise you and coordinate your loved one’s cross-border representation is generally the best approach.

FAQs: What to Know if a Loved One has Been Detained Abroad

Can someone be detained abroad if they have been accused of a crime?

Under international human rights law, pretrial detention is to be treated as a means of last resort. But, while pretrial detention should be the exception and not the rule, pretrial detention is common practice in many countries around the world. In many Latin American and European countries, for example, pretrial detention rates have skyrocketed due to court backlogs and financial constraints. While local laws often require pretrial detainees to be housed separately from convicted prisoners, pretrial detention conditions can still be harsh, unforgiving, and dangerous in many countries.

Current data suggest that nearly one in three people behind bars are unsentenced. This is true in the United States (where approximately 69% of people housed in local jails are unconvicted and awaiting trial) and numerous other countries around the world. While some countries enforce strict statutory time limits on pretrial detention, others do not. As a result, pretrial detention rates are continuing to rise, and many individuals have spent months or years in custody without a trial.

What rights do pre-trial detainees have in foreign countries?

Pretrial detainees’ rights vary between foreign countries. Unfortunately, in many foreign countries, pretrial detention conditions can match or exceed the harshness of the conditions in maximum-security prisons, and severe overcrowding, exposure to infectious diseases, and inadequate nutrition and healthcare can all be very real concerns. Even in countries like the UK, pretrial detainees often report inhumane conditions during lockdown, and asserting pretrial detainees’ rights can prove challenging. This makes it essential to promptly seek experienced legal representation.

Are bail reform efforts underway to help prevent pre-trial detention abroad?

While bail reforms and various alternatives have been pursued to help prevent pretrial detention abroad, these efforts have struggled to gain traction for various reasons. On any given day, there are millions of individuals in pretrial detention around the world, and many of these individuals are being detained because they cannot afford bail (or cannot make arrangements for the transfer of funds) or because bail simply isn’t available.

How can I help a loved one secure pretrial release overseas?

If a loved one is being detained overseas, you should contact the local US embassy or consulate, and you should hire a lawyer in the US immediately. You should also let your loved one know that you are seeking help on his or her behalf. In some jurisdictions, pretrial detention is used to try to pressure individuals to plead guilty, so letting your loved one know that efforts to help them are underway can be critical.

Speak with a Lawyer at Oberheiden PC for Free

If you need to help a loved one who has been detained prior to trial abroad, we strongly encourage you to contact us right away. Call 888-680-1745 or contact us online now to arrange a free and confidential consultation.

Related Pages:

INTERPOL Defense

Federal Agency International Enforcement

Defense for US Citizens Abroad

Crisis Response & Family Resources