Declaration

I, KibromMekbib, declare that this senor essay s is my own work and all sources or
materials used for this paper have been duly acknowledged. This thesis is
submitted in partial fulfillment of the requirements for the degree of Bachelor of
law (LLB) to Arba Minch university school of law I confidently declare that this
senior essay has not been submitted to any other institutions.

Declared by: kibrommekbib

Place: Arbaminch University
Date:
Signature: ----------------

Approved by:
Advisors name: NhomDuba (LLB, LLM)
Place: Arbaminch University
Date:
Signature: ----------------------
Acknowledgment

above all I thank God, nothing can be done without his will. Next I want to express my
gratitude to my advisor, Instructor NhomDuba (LLB,LLM) for his support and guidance
through this thesis work.

I also want to thank staff of Arba Minch university school of law including the previous staffs
that helped me in facilitating conditionsand inspiring me to do the best I can. My thanks are also
due to the individuals and government representatives who generously provide me information I
needed from them.

I am thankful to my family who are always on my side by supporting and encouraging

me and contributed a lot in my life. I express heartfelt gratitude to my classmates and law
schoolmates, especially
Lists of table

Table 1, Participants of the study and method of data collections used

Table 2,Detainee’s respondent sex, age and level of education

Table 3: Detention without charge and conviction

Table 4: Promptly Present Detainees before a Judicial Authority

Table 5: About bail request

Table 6: reason for denial of bail

Table 7: respect of human right

Table 8: knowledge about human right

Table 9: About legal representation and legal counseling

Table: 10 the family status of detainee

Acronyms
ACHPR African Charter on Human and Peoples Rights
ACmHPR African Commission on Human and Peoples Rights
BIRR Ethiopian currency
CAT Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or
punishment
ECHR European Convention on Human Rights
ECtHR European Court on Human Rights
EHRC Ethiopian Human Rights Commission
FDRE Federal Democratic Republic of Ethiopia
IACHR Inter American Convention on Human Rights
IACmHR inter American Commission on Human Rights
IACtHR Inter American Court on Human Rights
ICCPR International Covenant on Civil and Political Rights
ICESCR international covenant on economic, social and cultural right
SNNPR south nation nationality and people
UDHR Universal Declaration on Human Rights
UN United Nations
UNHRC United Nations Human Rights Committee
Abstract

This study examines the practical observance of human rights aspect of pretrial detention in
ArbaMinch city. It attempts to analyze rights of pretrial detained person as it has been
recognized in national, regional and international human rights instruments and effort is made
to explore whether they are respected in the process of undertaking of pretrial detention in case
area Accordingly, data was collected from selected police station and prison center found in the
city. Data was collected both from primary and secondary sources. Primary data was obtained
through interview, questionnaires and personal observation where as secondary data from
different literatures,government files and legal documents are reviewed. Questioner was
disseminated for 20 detainee found in the prison center. Interview was made with key informant
from detained person in police station; investigate police officer, public prosecutor, staff of the
prison center and judge. The research manly focus on the human right of aspect of pretrial
detention which can be assessed based on internationally and nationally granted right of pretrial
detainee person. To this end condition of detention and respect of human right of the detainee

are widely examined. the study has identified that sometimes police are arresting individuals
without evidence, criminal suspects are not brought to court in the specified time, absence of
notification of rights, long pre-trial detentions, detainee are losing bail right due to their
economic status, existence of legal gap governing the issue, condition of detention in police
custody are below the minimum standard and absence of external monitoring system are major
problems. Finally, the researcher has made recommendations that could rectify the existing
problems.

Contents
Chapter one Introduction.............................................................................................................................1
1.1 Background of the study....................................................................................................................1
1.2 Statement of the problem...................................................................................................................4
1.3 Research question..............................................................................................................................6
1.4 Objective of the study........................................................................................................................6
1.4.1 General objective........................................................................................................................6
1.4.2 Specific objective...........................................................................................................................6
1.5 Significance of the study....................................................................................................................7
1.6 Scope of the study..........................................................................................................................7
1.7 Research Methodology......................................................................................................................7
1.7.1 Population...................................................................................................................................7
1.7.2 Tools of data collection...............................................................................................................8
A) Interview........................................................................................................................................8
B) Questionnaires................................................................................................................................8
C) Document analysis..........................................................................................................................8
1.7.3 Methods of Data Analysis and Interpretation......................................................................................9
1.8 Limitation of the study.......................................................................................................................9
1.9 Organization of the paper..................................................................................................................9
Chapter two.........................................................................................................................................9
2. Conceptual and Legal Framework of pretrial detention...................................................................9
2.1 Conceptual Framework..................................................................................................................9
2.1.1 General overview of pretrial detention........................................................................................9
2.1.2 Purpose of pretrial detention.....................................................................................................11
2.1.3 Process of pretrial detention......................................................................................................11
A) Arrest............................................................................................................................................11
B) Bail right.......................................................................................................................................12
C) Appearing promptly before a judge..............................................................................................13
2.2 Legal frame work governing pretrial detention............................................................................14
2.2.1 International legal framework to govern pretrial detention.......................................................14
2.2.2 Regional Legal Frame Work to Govern Pretrial Detention.......................................................16
2.2.3 National Law of Ethiopia Governing Pretrial Detention...........................................................17
The FDRE Constitution.....................................................................................................................18
B) The Criminal Procedure Code.......................................................................................................19
C) Constitution of SNNPRS..............................................................................................................20
D) Federal Prisons Commission Establishment Proclamation..........................................................21
Chapter three.....................................................................................................................................21
3. Human Right of Pretrial Detained Person.....................................................................................21
3.1 The presumption of Innocence.....................................................................................................22
3.2 The Right to Prohibition from Arbitrary Arrest and detention.....................................................23
3.3 The right to Speedy Decision by Court on the Lawfulness of the Detention................................24
3.4 The Right to be segregated from Convicted person.....................................................................25
3.5 The right to be treated with Humanity and with Respect for the Inherent....................................26
3.6 The right to Faire and Speedy Trial.............................................................................................27
3.7 The Right to Compensation for Arbitrary Arrest and Detention..................................................29
Chapter four.......................................................................................................................................30
4. Analysis of the Implementation of Human Right of Detained Person and Undertaking of............30
4.1 Analyses of the data on the implementation of right of pretrial detained person in the................31
4.2 Conditions of Arrest and Detentions............................................................................................32
4.3 Promptly Present Detainees before a Judicial Authority..............................................................33
4.4 Failure to Release Pending Investigation.....................................................................................35
4.5 Prolonged Pre-trial Detention......................................................................................................36
4.6 The right to be treated with humanity and with respect for the inherent dignity of the................37
4.7 The right to legal council.............................................................................................................39
4.8 Effects of Pretrial Detention on the Family Relationship of Detainee His Family.......................40
Chapter five.......................................................................................................................................41
5. Conclusion and recommendation...................................................................................................41
5.1 Conclusion...................................................................................................................................41
5.2 Recommendations........................................................................................................................42
 Chapter one

Introduction
1.1 Background of the study
Pretrial detention is the incarceration of a person which is ordered when he or she seriously
suspected of having committed an offence.1 It is also locking up of a suspect or an accused
person on criminal charges in police stations and prisons before the completion of their trial.
2
Everyday thousands of criminal suspects around theworld are denied bail, putting the global
average of remand detainees at approximately three million. 3As is the case with many human
rights concerns, the poor, who cannot afford bail or the services ofa lawyer, will suffer the worst
of the effects of remand detention. 4 Remand detainees may suffer a range of negative effects,
such as the loss of his or her employment or home, health problems and disconnection from his
or her family and community. In addition, remand detainees face exposure to torture, extortion,
disease and are subject to the arbitrary actions of police, corrupt officials and even other
detainees.5Although the rate of remand detention in developingcountries is comparatively lower
than it is in developed nations,the average detention duration and percentage of prisoners who

1
AdneDesta, Pretrial Detention In Light of Human Rights Instruments: The Law and Practice. Addis Abeba, page,7
Ethiopia July, 2010, lastly accessed at 13/8/2016, 8:43 AM

2
Roselyn Karugonjo-Segawa, APCOF Policy Paper, Pre-trial Detention in Uganda, (November 4, 2012 ) page ,2
accessed on [Link]..../pretrial detention, lastly accessed at 13/8/2016, 6:42 AM
3
D Berry “The Socioeconomic Impact of Pre-trial Detention: A Global Campaign for Pre-trial Justice Report”
(2011), Open Society Foundation and United Nations Development Program, available
at,[Link]
[Link] ,lastly accessed at 11/8/2016, 9:42 AM

4
Clare Ballard, Research report On Remand Detention In South Africa : An Overview Of The Current Law And
proposals for reform , (2012) page 4, available at, [Link] d
%20detention %20in%20South%[Link] , lastly accessed at 13/8/2016, 6:42 AM

5
Ibid

1
are on remand in developing countries is relatively [Link] some countries, for example, over
three quarters of all prisoners are remand detainees.6
There are various causes for overcrowding of detainees. Principally the lack of resources
channeled by government to the police, judiciary and correctional services Money alone does not
meet the problem; however, there are other causes which result less from a lack of money and
more from poor lines of communication between the criminal justice agencies and weak co-
ordination and co-operation at the local and policy levels.7

In Ethiopia pretrial detention is governed both by the 1995 FDRE constitution and the 1960
criminal procedure code and other related laws and for purpose of this research I will focus on
both the constitution and the criminal procedure code. the constitution provide the ground rule
for pretrial detention, as a principleNo one shall be deprived of his liberty except in accordance
with such procedures as are laid down by law8 and No one shall be arrested or detained without
being charged or convicted of a crime except in accordance with such procedures as are laid
down bylaw9 but exceptionally deprivation of liberty is legitimate Where remand has been
requested for further investigation, the court may order the accused to be kept in custody for
duration as is deemed necessary. Remand granted by a court shall be such as to enable the
responsible officials of the public prosecution to investigate and speedily bring the case to a
court of law.10 From this we can understand that pretrial detention has constitutional base what
required the court to observe is the reasonability of the detention. And with regard the criminal
procedure code, Article 59(2), of the code deals that where the police investigation is not
completed, that is the discretion of the police to request or not to request and release on bail by
assertion of article 28. And a request of remand must be in writing, 11 and second each accession

6
Ibid

7
Penal Reform International, pretrial detention, available at, [Link]
index-pre-trial-v7-en_0.pdf , lastly accessed at 11/8/2016, 8:42 AM.

8
Article 17 of Constitution of the Federal Democratic Republic of Ethiopia, 1995, proclamation No 1,Negarit
Gazetta, year 1,No 1,
9
Ibid Article, 17(2)
10
Ibid Article , 19(4)
11
Article 59(2) of Criminal Procedure Code of Ethiopia, NegaritGazetta, Proclamation No. 185/1961

2
remand shall not be granted for more than fourteen days. According to article 59(3) no remand
shall be granted for more than fourteen days on each occasion but, doesn’t say anything about
the maximum period of the repetition of remand in custody. So from this we can understand that
the criminal procedure code governed pretrial detention as a norm for purpose of investigation
but also since the code failed to provide the maximum day of detention it open a door for longer
period of pretrial detention which is in contrary to human right norms.

Human rights are commonly understood as being those rights which are inherent to the human
being. The concept of human rights acknowledges that every single human being is entitled to
enjoy his or her human rights without distinction as to race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status. 12 Human rights
are legally guaranteed by human rights law which protects individuals and groups against actions
which interfere with fundamental freedoms and human dignity. They are expressed in treaties,
customary international law, bodies of principles and other sources of law.13Human rights are
inherent entitlements which come to every person as a con-sequence of being human. Treaties
and other sources of law generally serve to protect formally the rights of individuals and groups
against actions or abandonment of actions by Governments which interfere with the enjoyment
oftheir human rights.14
There are different international, regional and national instruments which govern issue of human
right in general and right related with arrested person in particular. Some of such instruments are
ICCPR, ICESCR, ACHPR, ECH, IACHR etc… and for the purpose of this pepper I will discuss
some provision which provided under ICCPR and other instruments related to my topic some of
them are, the right to liberty and security of person 15 and liberty of a person has been interpreted
narrowly, to mean freedom of bodily movement. No one shall be subjected to arbitrary arrest or
detention” and “No one shall be deprived of his liberty except on such grounds and in
12
Office Of The high commissioner for human rights united nation’s staff college project, Human Right, A Basic
Handbook for UN Staff Page 2, available at, [Link]
lastly accessed on August, 27, 2016

13
Ibid
14
Ibid

15
Article 9(1) International Covenant on Civil and Political Rights (ICCPR), adopted by United Nations General
Assembly, on16 December 1966, entered into force 23 March 1976

3
accordance with suchprocedure as are established by law 16. Anyone arrested or detained on a
criminal charge shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall
not be the general rule that persons awaiting trial shall be detained in custody, but release may be
subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and,
should occasion arise, for execution of the judgment.17 And if proves anyone who has been the
victim of unlawfularrest or detention shall have an enforceable right to compensation [Link] 10
of theICCPR provides in paragraph 1 that “All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent dignity of the human person. And the other
possible right which can be affected by pretrial detention is presumption of innocence, everyone
charged with a criminal offense shall have the right to be presumed innocent until proved guilty
according to law ”As a basic component of the right to a fair trial, the presumption of
innocence.19
So anybody with justice organ to undertake pretrial detention should take in to consideration
before and at the time of detention and if some of those right missed to be respect or protect we
can say pretrial detention is resulting human right violation.
In Ethiopia human right in general and the right of the detained person In particular has a due
recognition under the 1995 FDRE constitution in two manners, the first manner is by adopting
international human right instruments and recognizing them as they are the law of the
land.20This means the above discussed rights are mutant’s mutandis applicable in the same
manner. The second manner is by directly incorporating them in the constitution like, the rights
as rights of arrested person, accused person, rights of persons held in custody and convicted
person and prohibition against inhumane treatment including economic and cultural right.21

16
Ibid Article 9(1),
17
Ibid Article 9(2),
18
Article 9(5) International Covenant on Civil and Political Rights (ICCPR), adopted by United Nations General
Assembly, on16 December 1966, entered into force 23 March 1976
19
Article 14 of ICCPR
20
Constitution of the Federal Democratic Republic of Ethiopia, 1995, proclamation No 1,Negarit Gazetta, year 1,No
1, article 9(4)

21
Ibid Article 19, 20 & 21

4
 1.2 Statement of the problem
Pretrial detention is one of the worst things that can happen to a person: the detainee immediately
loses his freedom, the right to speedy trial, the right to presumption of innocence, and can also
lose his family, health, home, job, and community [Link] pretrial detention excessively
and/or arbitrarily is not only a violation of international norms, but also often unnecessary and
Many of those held in pretrial detention will have their charges withdrawn due to lack of
evidence, while others will be acquitted at trial. Still others will be found guilty of minor,
nonviolent offenses for which jail time is inappropriate or for which the maximum sentence is
less than the time spent awaiting trial. 22 In Ethiopia As discussed on the background just like that
of international instruments both the constitution and the criminal procedure code recognize
pretrial detention as a norm to undertake crime investigation and trial but the problem is the
provision of criminal procedure code and some practical misconduct paves the way for a
pretrial detention to cause human right violationThe criminal procedure code article 59 failed to
stipulate the maximum period of remand to be granted rather it limit the day to be granted in one
occasion so possibility of longer period of pretrial detention is high and his will become cause
for different violation of right like the right to speedy trial, the right to liberty, and other related
rights. The practical problem is related to condition of detention which can be classified in to
two, first there are two practices with regard to place of pretrial detention which is, in police
station and prison center and both have their own adverse effect on the human right of the
detainee. First when he/she stay in police center for long time he/she will louse medical
treatment, food and other related service generally he is subject to ill-treatment torture at the time
of investigation and in the second when it is in prison center he will get what he loses when he
stay in police station but it will affect its presumption as innocent within the society cause the
society accepted only who committed crime will stay in prison center or it is only after acquittal
that the individual sent to prison center and there is no pretrial detention center in Ethiopia this
also affect his right to be detained separately. The Second practical problem is violation of right
related to treatment
Arba Minch is the capital city of GamoGofa zone which found in south nation nationality and
peoples regional administration. And since we have only one federal criminal procedure code
22
Open Society Foundations, the Socioeconomic Impact of Pretrial Detention, page 11, available at,
[Link] lastly accessed at 9/8/2016, 8:42 AM.

5
which will apply allover Ethiopia ArbaMinch,is subject to above discussed problem in the same
manner. There are many pretrial detainees in ArbaMinch City in a different police station and
prison center that are subject to above mentioned problem of human right violation which
resulted from pretrial detention. So it is necessary to conduct research in order to know the
practical implication of the mentioned problem in the case area and to assess the possible cause
and consequence of human right violation related to pretrial detention and to provide possible
solution to avoid the problem

1.3 Research question

In achieving the intended goal this study rises andwill address the following questions

 how pretrial detention result human right violation

 what are causes for prolonged pretrial detention
 what right of the detainee will fortified due to pretrial detention
 what are the possible consequence which resulted from violation of human right due to
pretrial detention
 what are practical causes which result violation of human right in relate to pretrial
detention in ArbaMinch

1.4 Objective of the study

1.4.1 General objective

The general objective of the study is to identify and show how pretrial detention result human
right violation in general and to assess its practical implication in ArbaMinch City.

1.4.2 Specific objective

 to show the existence of practical gap on the implementation of pretrial detention in
ArbaMinch( case area)
 to identify and indicate causes for excessive pretrial detention
 Investigating the understanding and respect of human right among the detainee bodies
 to seek possible solution in order to reduce the negative impact of pretrial detention
 to identify and study practical factors that lead pretrial detention to result human right
violation in ArbaMinch

6
  To make comparison between international system and the national one by discussing the
shared human right frame works provided by international instruments.

1.5 Significance of the study

 It will be an icebreaker on the experienced silence directed against human rights
violations in prisons and police custody.
 it will help to reflection the problems that are frequently occurring in relate to pretrial
detention
 It brings attitudinal change among the society (with regard to presumption of innocent) in
general and prison or police center authorities in particular.
 It also draws the attention of human rights advocators to this forgotten area
 It may provide concerned government officials and decision makers relevant and research
based information for further action
 It serves as reference to further research
 It contributes knowledge to the existing discourse on the issue

1.6 Scope of the study

The study comprises both legal and practical analyses with regard to pretrial detention in light of
human rights principle. Effort will be made to assess international (international documents
ratified by Ethiopia) regional and domestic legal frame work governing pretrial detention. To
make the research manageable in the allocated time and resource, the practical analysis limited to
condition of detention in prisons center and police detention centers of ArbaMinch city.

1.7 Research Methodology

In general, the methodology of this study will employ both primary and secondary sources.
Addressing relevant human rights instruments takes first hand in the study while the study is also
supported by structured and non structured interviews, and questionnaires as well as observations
and real cases. To this end, it consults, inter alia, books, journals, and other relevant publications.
It assesses the international legal frame and the national legal accommodations pertaining to
treatment of prisoners. UN Human rights bodies ‘jurisprudence will be consulted; regional
human rights jurisprudence also will be referenced as to its relevance.

7
 1.7.1 Population

As provided earlier, the objective of this study is to explore human rights aspect of pre-trial
detention in ArbaMinch. Accordingly, the target population of the study is the detainee, family
of the detainee, police officer public prosecutor, staff of the prison center and judge found in the
city.

1.7.2 Tools of data collection

A) Interview

An interview is used to collect primary data from individuals who works on criminal justice system
and knows the practice (police officer, public prosecutor, judge) , individual who had experience
of pretrial detention ( individual who detained before and released). The interview was made
with key informants to generate information on the practical observance of human right aspect of
pretrial detention.

B) Questionnaires

Both close ended and open ended questions will be usedto collect a quantitative data from
informants on issues under investigation from pretrial detained person in police custody and
prison center. Complimenting close ended question with open ended questions allows informants
to give an explanation on the answers they give to the close-ended questions.

C) Document analysis

Different international and national human rights documents which have direct relation to the
topic were analyzed in relation to their and different principles, guidelines and standards of

8
pretrial detention and the right of accused and detained persons. In addition to these, relevant
literatures like books, journals and research paper were used as other source of information for
this study.

1.7.3 Methods of Data Analysis and Interpretation

After having collected the necessary data the respondents of the interview and questioners and
from the observation I will use qualitative and quantitative techniques to analyze the data with
the laws and instruments mentioned would be provided figuratively.

1.8 Limitation of the study

While conducting this paper the researcher expect the following challenges related to personal
matter and challenges which are beyond the researcher: to mention some personal related
challenges: challenge related to time management this because I will conduct my research in
addition to class and national exit exam so I will expect time constrain and challenges which are
beyond the research are, challenges related with data collection like, failure to give accurate
information, language problem to give information shortage of internet access and absence of
formulated data of detainee in the centers. Even though it is possible to expect the above
mentioned challenges I will try to overcome these challenges bay finding way out.

1.9 Organization of the paper

The study will be organized into four chapters. The first chapter deals with proposal which
includes background of the study, statement of the problem, research question, objective of the
study, significance of the study, methodology of the study scope of the study and organization of
the research. The second chapter would discuss review of related literatures which include
conceptual and legal frame work of pretrial detention and human right of detained person. The
third chapter devoted to data presentation and analysis on the human right aspect of pretrial
detention in the case area. And the final chapter covers conclusion and recommendation.

Chapter two

9
 2. Conceptual and Legal Framework of pretrial detention

2.1 Conceptual Framework

2.1.1 General overview of pretrial detention

There are different definitions developed by different country. Thus it is difficult to have a single
precise definition. A Swiss author called piquerez defines pretrial detention as follows: Pretrial
detention is the incarceration of a person which is ordered when he or she seriously suspected of
having committed an offence. 23In order to put he off she at disposal of justice where necessary
for the reason of investigation of security, for all any amount of the time period beginning with
the start of criminal investigation.24 What we can infer from this definition is pretrial detention is
a form of detention used for the purpose of undertaking investigation and prosecution. In the
English-language world alone, people in detention are referred to variously as “remand
prisoners,” “remandees,” “awaiting trial detainees,” “untried prisoners,” and “un sentenced
prisoners.”25

Pre-trial detention refers to the locking up of a suspect or an accused person on criminal charges
in police stations and prisons before the completion of their trial although; detention in pending
trial should be the exception rather than the rule.26
People in detention are usually held in jails instead of prisons, or are held in specialized pretrial
detention facilities. These prisoners are not treated guilty of any crime and they are not treated as
offenders, although they deprived of their freedom and usually have their activities restricted
while they are in detention for security reason. 27 There are two reasons why some may be held in
pretrial detention. The first reason is an inability to afford bail. The second reason is denial of
bail, bail can be denied to accused in prisoners for any number of reasons, ranging from concern

23
AdneDesta, Pretrial Detention In Light of Human Rights Instruments: The Law and Practice. Addis Abeba, page,7
Ethiopia July, 2010
24
Ibid

25
Mark Shaw, Open Society Justice Initiative, Pretrial Detention, available on,
[Link] lastly accessed on 9/26/2016, at
10:51 pm
26
Roselyn Karugonjo-Segawa, APCOF Policy Paper, Pre-trial Detention in Uganda, , page 2, November 4, 2012
accessed on [Link]..../pretrial detention , lastly accessed on 9/26/2016, at 10:51 pm
27
Wise Geek, what is pretrial Detention, available on, [Link]/what is pretrial detention// , lastly
accessed on 9/26/2016, at 10:51 pm

10
about their safety if they are released to a belief that the prisoner is a flight risk and will not
return for legal proceeding. In these cases, the judge usually explains why the detainee cannot be
freed on bail and the detainee attorney may make a counter argument in a attempt to secure a
release on bail. 28

2.1.2 Purpose of pretrial detention

Pretrial detention may be ordered only if there are reasonable grounds to believe that the person
concerned have involved in the commission of the alleged offenses and there is a danger of
absconding or committing further serious offenses, or a problem that the cause of Justice will be
seriously interfered with if they are left free Pretrial detention occurs for different reasons: 29

 For the purpose of proper investigation; investigation remand: In this condition whether
there was reason to believe that the person has probably committed the offence, and the
progress of the investigation and diligence of police by taking steps in collecting
evidence such as interviewing collecting of technical evidences or forensic evidence,
seizure etc.
 By the operational in cases involving non bail able offenses because of their grave nature.
Example :- the person who was committed a certain criminal act that crime may be
penalize above 15 years in rigorous imprisonment that time the suspected person ignored
the bail or deprived bail right.30
 To prevent the accused not to obstruct justice. When the accused person might be
released by bail that after that person not present or appear the operation of justice
obstruct because the court doesn’t able to render decision up on the suspect end person.
 To protect the community from the attainders further criminal conduct,

2.1.3 Process of pretrial detention

A) Arrest

Once a suspect has been identified, the next step is an arrest. It is one of the most common means
of controlling and preventing crime. Arrest is a preliminary step in the process of the prosecution
28
Ibid
29
Ibid
30
criminal procedure code article 63(1)

11
of a suspected offender andArrest can also be defined as; The act of taking a person into custody
under the authority of the law or by compulsion of another kind and includes the period from the
moment he is placed under restraint up to the time he is brought before an authority competent to
order his continued custody or to release him.31 Hence, arrest in general terms is “the taking of a
person into custody in the manner authorized by law for the purpose of presenting that person
before a court to answer for the commission of a crime.” From this definition we can understand
that the primary purpose of an arrest is the apprehension of a person suspected of the commission
of a criminal offence and to restrain him/her from committing, or continuing to commit.32

B) Bail right

Bail right is human right of every individual to procure the release of a person from legal
custody, by undertaking that he shall appear at the time and place designated and submit himself
to the jurisdiction and judgment of the court to set at liberty a person arrested or imprisoned, on
security being taken for his appearance on a day and a place certain, which security is called
“bail,” because the party arrested or imprisoned is delivered into the hands of those who binds
themselves for his forthcoming.33

 Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release34. It shall not be the general rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to appear for trial, at any other
stage of the judicial proceedings, and, should occasion arise, for execution of the
judgment.35Person charged with an offence must always be released pending trial unless the State
can show that there are “relevant and sufficient” reasons to justify his continuing detention. The
domestic courts must, paying due regard to the principle of the presumption of innocence,
examine all the facts arguing for or against the existence of a genuine requirement of public

31
United Nations, Study of the Right of Everyone to be Free From Arbitrary Arrest, Detention and Exile,34 U.N.
ESCOR Supp. (No.8) at 5, U.N. Doc. E/CN.4/826/Rev. I (1964).
32
Paul Roberts (2007), Law and Criminal Investigation, Willan Publishing Ltd, ps. 92-146
33
 Black's Law Dictionary Free 2nd Ed, [Link]
34
ICCPR Article 9(3)
35
ICCPR Article 9(3)

12
interest justifying a departure from the rule of respect for individual liberty and must set them out
in their decisions on the applications for release.36 Generally Pretrial detention should be ordered
only if there are reasonable grounds to believe that the accused has been involved in the commission of
the alleged offence, and there is a danger of flight, commission of further serious offences, or that the
course of justice will be seriously interfered with if they are freed. 37

C) Appearing promptly before a judge

Most human rights bills at both domestic and international law include the right to trial within a
reasonable time, often termed the right to be tried without undue delay or the right to a speedy
trial.38 The other one is those bills of rights grant two distinct rights, one being a right to ‘either trial
within a reasonable time or release on pending trial’ with the other being ‘the right to trial within a
reasonable time.39The right is intended to bring the detention of a person in a criminal investigation or
prosecution under judicial control if a person already detained on one criminal charge is also ordered to
be detained to face an unrelated criminal charge, the person must be promptly brought before a judge for
control of the second detention. 40 Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not lawful. 41 Pre-trial detention
should be minimized whenever possible, and should be used only as a last resort, in certain,
limited circumstances. It means that, suspects should only be detained before trial where there is
reasonable suspicion that they have committed an offence and where the authorities have
substantial reasons to believe that and if released, they would escape or commit a serious offence
or interfere with the course of justice.42 article 9(3) of ICCPR provide,” Anyone arrested or
36
Lawyers Rights Watch Canada, the pretrial right and the right to be presumed innocent(March 2013), page 27,
available at,[Link]
[Link], Lastly accessed October 8/2016 at 11:28 A.M
37
Supra note 22, page 1
38
ZvikomboreroChadamuke,serious offences and the right to trial with reasonable time , page 1,available at,
[Link] accessed October 8/2016 at 9:28 A.M
39
Ibid, page 4
40
Supra note 2 page 11
41
ICCPR Article 9(4)
42
FisehaGetachew,the respect for human right in pretrial criminal investigation, page 27, February 2015, available at,
[Link] accessed October 8/2016 at 10:28
A.M

13
detained on a criminal charge shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time
or to release. It shall not be the general rule that persons awaiting trial shall be detained in
custody, but release may be subject to guarantees to appear for trial, at any other stage of the
judicial proceedings, and, should occasion arise, for execution of the judgment”. According to
the jurisprudence of the Human Rights Committee “promptly” must be determined on a case-by-
case-basis, the delay between the arrest of an accused and the time before he is brought before a
judicial authority should not exceed a few days.43 According to ECHR “ Everyone arrested or
detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release pending trial. Release may be conditioned
by guarantees to appear for trial”44. The African Commission has also importantly held that the
“right to be tried within a reasonable time by an impartial court or tribunal” as guaranteed by
article 7(1) (d) of the African Charter is reinforced by its Resolution on Fair Trial, according to
which persons “arrested or detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within reasonable time
or to be released.45 Once the individual has been brought before the judge, the judge must decide
whether the individual should be released or remanded in custody for additional investigation or
to await trial. If there is no lawful basis for continuing the detention, the judge must order
release. If additional investigation or trial is justified, the judge must decide whether the
individual should be released (with or without conditions) pending further proceedings because
detention is not necessary.46

43
Communication No. 373/1989,L. Stephens v. Jamaica (Views adopted on 18 October 1995), in UN doc. GAOR,
A/51/40 (vol. II), p. 9, para. 9.6.
44
ECHRArticle 5(3)
45
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers,
page 186 available at, [Link] ,accessed on
11/9/2016
46
UN Human Right, General comment No. 35 on, Article 9 (Liberty and security of person), (16 December 2014),
page 11, available at, [Link] ,accessed on 11/9/2016

14
 2.2 Legal frame work governing pretrial detention

2.2.1 International legal framework to govern pretrial detention

Among the relevant norms of international human rights law, reference may be made to the
Universal Declaration of Human Rights, Article 9 of which stipulates: “No one shall be
subjected to arbitrary arrest, detention or exile.” The corresponding provision in the International
Covenant on Civil and Political Rights (ICCPR) is Article 9, paragraph 1, which stipulates:
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention.47 No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.48 In its jurisprudence the United
Nations Human Rights Committee, the body responsible for monitoring compliance by States
party to the ICCPR, has made it clear that detention which may be initially legal may become
“arbitrary” if it is unduly prolonged or not subject to periodic review.49

The right to liberty of person is not absolute. Article 9 recognizes that sometimes deprivation of
liberty is justified, for example, in the enforcement of criminal laws but the deprivation of liberty
must not be arbitrary, and must be carried out with respect for the rule of law. The second
sentence of paragraph 1 of article 9 of ICCPR prohibits arbitrary arrest and detention, while the
third sentence prohibits unlawful deprivation of liberty, i.e., deprivation of liberty that is not
imposed on such grounds and in accordance with such procedure as are established by law. The
two prohibitions overlap, in that arrests or detentions may be in violation of the applicable law
but not arbitrary, or legally permitted but arbitrary, or both arbitrary and unlawful. Arrest or
detention that lacks any legal basis is also arbitrary.50

‘’Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be
47
ICCPR Article 9(1)
48
Ibid article 9(2)
49
Alfred de Zayas, Human rights and indefinite detention, Volume 87 Number 857 , page 16, March
2005[Link] , lastly accessed on 10/11/2016
50
UN Human Rights Committee (HRC), General comment no. 35, Article 9 (Liberty and security of person), page
10, 16 December 2014, CCPR/C/GC/35, [Link] , lastly accessed on
10/11/2016

15
detained in custody, but release may be subject to guarantees to appear for trial, at any other
stage of the judicial proceedings, and, should occasion arise, for execution of the judgment’’. 51 In
addition to above mentioned instruments “standard minimum rule for the treatment of
Prisoners52” which is adopted by UN govern issue of pretrial detention under article 7(1), 8, 84
and 85 especially article 84(1) provides, Person arrested or imprisoned by reason of a criminal
charge against them, who are detained either in police custody or in prison custody (jail) but
have not yet been tried and sentenced, will be referred to as “untried prisoners,” here in after in
these rules

2.2.2 Regional Legal Frame Work to Govern Pretrial Detention

African charter on human and people rights provide “Every individual shall have the right to
liberty and to the security of his person. No one may be deprived of his freedom except for
reasons and conditions previously laid down by law. In particular, no one may be arbitrarily
arrested or detained”. Liberty is principle and the exception is deprivation of liberty based on
law53. The legal basis of arrest and detention in domestic law also relates to the quality of the
law itself. It must be compatible with restrictions allowed by article 9(1) of ICCPR which
provides safeguard for respect of the right to liberty, and with the rule of law. 54 ACHPR using its
mandate provided under the charter to adopt guidelines to implement the charter 55 adopted guide
line on the condition of arrest, police custody and pretrial detention. And article 10 of the guide
line provides Pre-trial detention is a measure of last resort and should only be used where
necessary and where no other alternatives are available and Judicial authorities shall only order
pre-trial detention when If there are reasonable grounds to believe that the accused has been

51
ICCPR Article 9(4)
52
Standard minimum Rules for the treatment of prisoners, adopted y the first united nation congers the presentation
of crime and the treatment of offenders, 30 Aug, 1955.

53
ACHPRArticle 6
54
Candidate Number: 80006, pretrial detention in Zanzibar, a study of human right of pretrial detainees under
domestic law and practice ,march 2006 also available at, [Link] [Link] .no/bistre m/handle /10852/ 20639
/[Link]?sequence=1 ,page 9 lastly accessed, 11/12/2016

55
Article 45(1)(b) of the African Charter, the Commission is mandated to formulate standards, principles and rules
on which African Governments can base their legislation

16
involved in the commission of a criminal offence that carries a custodial sentence, and there is a
danger that he or she will abscond, commit further serious offences or if there is a danger that the
release of the accused will not be in the interests of justice. 56 The guide line shows pretrial
detention is legitimate if it is not arbitrary and it is also possible to challenge the lawfulness of
their detention at any time and to seek immediate release in the case of unlawful or arbitrary
detention, and compensation and/or other remedies as set out in Part 8 of these Guidelines.

The other regional instrument which govern pretrial detention and I discuss for the purpose of his
pepper is the ECHR and permits detention when it is reasonably necessary to prevent further
offenses or flight. Drawing from Article 5(1), the Council of Europe has said that a person may
only be remanded in custody if: “there are substantial reasons for believing that, if released, he
would either: (i) abscond, or (ii) commit a serious offence, or (iii) interfere with the course of
justice, or (iv) pose a serious threat to public order. Everyone arrested or detained in accordance
with the provisions of paragraph 1 (c) of Article 5 shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. 57 Release may be conditioned by guarantees to appear
for [Link] ECtHR has ruled that a person detained on the grounds of being suspected of an
offence must be brought promptly or “speedily”4 before a judicial authority, and the “scope for
flexibility in interpreting and applying the notion of promptness is very limited”. The trial must
take place within “reasonable” time according to Article 5(3) ECHR and generally the
proceedings involving a pre-trial detainee must be conducted with special diligence and speed.
Whether this has happened must be determined by considering the individual facts of the case.
The ECtHR has found periods of pre-trial detention lasting between 2.5 and 5 years to be
excessive.58

2.2.3 National Law of Ethiopia Governing Pretrial Detention

56
Part 11 of the guide line on the condition of arrest, police custody and pretrial detention adopted by the African
human right commission.
57
ECHR Article 5(2)
58
AlessioScandurra, Gennaro Santoro, GraziaParisi,The practice of pre-trial detention in Italy Research report, page
6, also available at,[Link]
lastly accessed on 11/12/2016

17
The above discussed international instruments are applicable in case of Ethiopia based on article
9(4) and 13(2) of the constitution which provide, “all international agreements ratified by
Ethiopia are an integral part of the law of the land. 59” And the fundamental rights and freedoms
specified in this Chapter shall be interpreted in a manner conforming to the principles of the
Universal Declaration of Human Rights, International Covenants on Human Rights and
International instruments adopted by Ethiopia60 in addition to this the constitution, criminal
procedure code, constitution of SNNPRS and other laws related to criminal procedure code
govern issue of pretrial detention expressly.

The FDRE Constitution

Article 17(1) “No one shall be deprived of his or her liberty except on such grounds and in
accordance with such procedure as are established by law”. In a similar manner to international
instruments liberty is not absolute if there is well established reason followed by procedural
requirement of the law it is possible to restrict liberty. Sub article 2 of the same provision
provide, “No person may be subjected to arbitrary arrest, and no person may be detained without
a charge or conviction against him.” This provision provide requirement for detention which is
criminal charge or conviction. From the above provision of we can conclude that liberty is a
principle which will be followed by exception. The main ground for deprivation of liberty is
arrest for suspicion of committing crime. After crime is under taken the next step is bringing the
arrested person before court within 48 hours.61 Then the court “Where the interest of justice
requires, the court may order the arrested person to remain in custody or, when requested remand
him for a time strictly required to carry out the necessary investigation. In determining the
additional time necessary for investigation, the court shall ensure that the responsible law
enforcement authorities carry out the investigation respecting the arrested person’s right to a
speedy trial.”62 The next step which undertakes to give back the right to liberty for the arrested
person is the right to bail; it has been recognized as one of the fundamental human rights of
arrested persons under the FDRE constitution. Article 19 (6) of the constitution stipulates that
“Persons arrested have the right to be released on bail” and in exceptional circumstances

59
FDRE constitution Article 9(4)
60
Ibid Article 13(2)
61
Ibid Article 19(3)
62
FDRE constitution Article 19(4)

18
prescribed by law, the court may deny bail or demand adequate guarantee for the conditional
release of the arrested person. Therefore if the court decides to remain on remand as per article
19(4) and denied bail as per article 19(6) the suspects become pretrial detained person.

B) The Criminal Procedure Code

As it is discussed above liberty is principle and the exception is arrest. Where an individual is
reasonably suspected to have been involved in the commission of crime, he will be arrested and
appear before an investigative police officer or judge. 63
Article 49-55 of the criminal procedure
code govern the procedure to undertake arrest. For the purpose of this paper I will discuss
relevant provision only.

According to article 28(1) where the condition provided under this article fulfilled “the
investigating police officer may in his discretion release such person' on his executing a bond
with or without sureties that he will appear at such place, on such day and at such time as may be
fixed by the police”. Where the accused is not released on bond under this Article, he may apply
to the court to be released on bail in accordance with the provisions of Art. 64. 64 If the
investigative police officer failed to release the arrestee using bail bond the next step is provided
under article 59 of the criminal procedure code, the court before which the arrested person is
brought (Art. 29) shall decide whether such person shall be kept in custody or be released on
bail.65 This provision require the court to decide on its own motion wither the arrestee should be
released on bail or remain in custody.66 Even if the law require deciding on issue of bail on its
own motion article 64(1) Article 64(1) grant a right to a person under arrest may at any time to
apply for bail. After the application the court decides within 48 hour. 67 The law also provides
procedural requirements and grounds to allow and dine bail. 68 If the court failed to grant release
on bail the arrestee is subject to pretrial detention for the purpose of trial. The other issue to be
raised is issue of remand, “Where the police, investigation is not completed the investigating
police officer may apply for a remand for a sufficient time to enable the investigation to be

63
WondwossenDemissie, Ethiopian criminal procedure code,page189,AddisAbaba, sebtember,2012 page 64
64
Article 28(2) of criminal procedure code
65
Article 59(1) of criminal procedure code
66
Supra note 48 page 211
67
Article 66 0f criminal procedure code
68
Article 63-79 of criminal procedure code

19
completed.”69 And sub article of article 59 provides no remand shall be granted for more than
fourteen days on each occasion. The law gives discretionary power to court to decide on the
period of remand by looking stage of the investigation but the problem is the provision failed to
limit the reptilian of request for remand and this may paves the way police officer to be negligent
and to result excessive pretrial detention.

C) Constitution of SNNPRS

The constitution of FDRE confers equal recognition for both regional states and federal
government. The regional states are independent of the federal government for the executive
judicial and legislative power.70

Using the above power SNNPR enacted its own constitution which promulgated by the elective
representative of the people of the region, first on 1995, and revised on 2001. So for the purpose
of this paper I will discuss some provision which had relationship with pretrial detention.

Like article 13(2) the FDRE constitution, constitution of SNNPR also provides that “the
fundamental rights and freedom mentioned on this chapter shall be interpreted in conformity
with UDHR and other international instruments adopted by Ethiopia” 71 this means the above
discussed international instruments are applicable in the same manner. The other specific article
with the issue is article 17, which provide “no one deprived his liberty except in accordance
established procedure72 “and no one is subject to arbitrary arrest and be detained without charge
or conviction73” in the same manner to other human right instruments liberty is principle and also
there is exceptional grounds for deprivation of it so in this case the exception are procedural
requirements for arrest and conviction and charge in case of detention. The other provision is
article 19(3) provides the right to be brought to the court within 48 hours this provision allows
the arrested person about way he is arrested and if it is possible to released on pending trial and if
the arresting police officer failed to bring him he has a right petition to the court to order his
69
Ibid Article 59(2)
70
Elias Abebe, GetenetMolla, legal protection and implementation of prisoners right in Ethiopia: case study in
ArnaMinch,Gidole and Chenca(Arba Minch university school of law, 2016 ) page 34
71
the revised constitution of SNNPRS, proclamation of SNNPRS No 35 of 2001, Article 13(2)
72
Ibid Article 17(1)
73
Ibid Article 17(2)

20
physical release and when the interest of justice requires, the court may order the arrested person
to remain in custody for reasonable time which can be measured by the time necessary for the
undertaking of investigation.74 If these procedures failed still he has the right to bail which
provided under article 19(6) “every person has the right to be released on bail the court may
however deny bail when the law require or demand adequate guaranty. The denial most of the
time is related the requirement of the law which means laws which govern the undertaking of
criminal procedure code, the inability of the person requesting bail to bring the guaranty
requested by the court in rare circumstance people are not aware the existence of the right bail.
If the above provided rights failed to release the arrested person due to different reason he is
subject to pretrial detention then the next provision of the constitution starts to be implemented
like the right of accused person75and the right of person held in custody and convicted person. 76
The right of person in custody is to refer pretrial detained person. Generally the general overview
of the constitution in relation to pretrial detention is discussed above and I used to discuss it
randomly is due to the fact it is repetition of the FDRE constitution.

D) Federal Prisons Commission Establishment Proclamation

The proclamation define as follow "Prisoner" means a convicted prisoner serving a sentence
passed by a court authorized by law; and shall also refer to a person detained upon judicial
remand.77 From this we can understand that the proclamation is governing untried [person with
that of convicted one this because there is no pretrial detention center which is separate. And
article 22 tries to provide special treatment by providing, “Remand and civil prisoners shall not
be presumed as offenders, and shall be entitled to treatment different from convicted prisoners.
This includes the right to presumption of innocence and the right to be treated in a separate
manner from convicted person.

Chapter three

74
Ibid Article 19(4)
75
Ibid Article 20
76
Ibid Article 21
77
Federal Prisons Commission Establishment Proclamation, Federal NegaritGazzeta, Proclamation No. 365/2003,
Article 2(5)

21
3. Human Right of Pretrial Detained Person

3.1 The presumption of Innocence

The presumption of innocence has long been described as the ‘‘golden thread’’ running through
our criminal justice system. Its importance cannot be overstated as it underpins a number of
fundamental legal rights and procedures. At its most basic level, it operates on an accepted
understanding that a defendant remains innocent until such time as their guilt is proven beyond
reasonable doubt.78 Every individual charged with a crime has the right to be presumed innocent
until proven guilty according to law.79 This principle requires that pre-trial detainees be treated in
accordance with their status as unconvinced persons. To detain a suspect is to deprive him from
his liberty without having a judge establish his guilt within a fair trial. A pre-trial detainee may
turn out to be innocent in the end. Therefore, when pre-trial detention is perceived to be applied
too easily, too often or too long, it is alleged that pre-trial detention practice should be more in
keeping with the presumption of innocence. 80
Defendants must not be presented in court in a
manner indicating that they may be dangerous criminals. Public authorities must refrain from
making public statements about an accused which may prejudge the outcome of a fair
[Link] may only impose those restrictions required to maintain order and security in the
place of detention. Accused persons shall, save in exceptional circumstances, be segregated from
convicted persons.81 It is fundamental right of pretrial detained person provided under all
international and regional human right instruments (UDHR 82, ICCPR,83 ACHPR84, ECHR,). In

78
Fair trial international, Proposed pre-trial detention reforms threaten presumption of innocence in Australia,
August 27, 2014available at , [Link] ,lastly accessed
on 11/13/2016

79
ICCPR Article 14(2)
80
Lonneke Stevens, Pre-Trial Detention: The Presumptionof Innocence, page 168, available at,http:// dare. Ubvu.v
[Link]/bitstream/handle/1871/20104/pretrial?sequence=2, lastly accessed on 11/17/2016
81
Lawyers Rights Watch Canada, the pretrial right and the right to be presumed innocent, available at, [Link]
[Link]/ws/wp-content/uploads/2013/04/[Link], lastly
accessed on 11/17/2016
82
UDHR Article 11
83
ICCPR Article 10(2)(a)
84
ACHPR Article 7(1)(b)

22
Ethiopia this right duly recognized under the constitution article 20(2) provides, “accused person
have the right to be presumed innocent until proved guilty according to the law”. So since
pretrial detention is detention before conviction pretrial detains are subject to this right.

3.2 The Right to Prohibition from Arbitrary Arrest and detention

Article 9(1) of the International Covenant on Civil and Political Rights, article 6 of the African
Charter of Human and Peoples’ Rights, article 7(1) of the American Convention on Human
Rights and article 5(1) of the European Convention on Human Rights guarantee a person’s right
to “liberty” and “security”. The question of when detention is or becomes arbitrary is not
definitively answered by the international instruments.85With regard to the meaning of the words
“arbitrary arrest” in article 9(1), the human right Committee has explained that, Arbitrariness’ is not to
be equated with ‘against the law’, but must be interpreted more broadly to include elements of
inappropriateness, injustice, lack of predictability and due process of law. ... This means that
remand in custody pursuant to lawful arrest must not only be lawful but reasonable in the
circumstances. Remand in custody must further be necessary in all the circumstances, for
example, to prevent flight, interference with evidence or the recurrence of crime. 86 In other
words, remand in custody pursuant to lawful arrest must not only be “lawful” but also
“reasonable” and “necessary” in all the circumstances for the aforementioned purposes. It is for
the State party concerned to show that these factors are present in the particular case. 87In a case
where a victim had been held in detention for about 16 months with a view to forcing him to
disclose the whereabouts of his brother, the Committee considered that he had been subjected to
“arbitrary arrest and detention” contrary to article 9, there being no other criminal charge laid
against him.88

This right is also duly recognized under the FDRE constitution which provides “No one shall be
deprived of his or her liberty except on such grounds and in accordance with such procedure as

85
Fact Sheet No. 26, The Working Group on Arbitrary Detention, available at, [Link] [Link] g/ Do cum
ents /Publications/[Link],lastly accessed on 11/17/2016
86
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers,
page 165 available at, [Link] accessed on
11/17/2016
87
Ibid page, 166
88
Id

23
are established by law. 89
No person may be subjected to arbitrary arrest, and no person may be
detained without a charge or conviction against him.90

3.3 The right to Speedy Decision by Court on the Lawfulness of the Detention

This right is what we call it “Hbeas corpus” Article 9(4) of the Covenant reads as follows:
“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings
before a court, in order that that court may decide without delay on the lawfulness of his
detention and order his release if the detention is not lawful . The American convention also
provides, “Anyone who is deprived of his liberty shall be entitled to recourse to a competent
court, in order that the court may decide without delay on the lawfulness of his arrest or
detention and order his release if the arrest or detention is unlawful. In States Parties whose laws
provide that anyone who believes himself to be threatened with deprivation of his liberty is
entitled to recourse to a competent court in order that it may decide on the lawfulness of such
threat, this remedy may not be restricted or abolished. The interested party or another person on
his behalf is entitled to seek these remedies.”91 In addition to above convention Article 5(4) of
the European Convention provides that “Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the lawfulness of his detention shall be
decided speedily by a court and his release ordered if the detention is not lawful.

The right to challenge the lawfulness of detention before court using the above discussed
provision of international instrument is a self-standing human right, the absence of which
constitutes a human rights violation. It is a judicial remedy designed to protect personal freedom
and physical integrity against arbitrary detentions by means of a judicial decree ordering the
appropriate authorities to bring the detained person before a judge so that the lawfulness of the
detention may be determined and, if appropriate, the release of the detainee be ordered. 92The
prohibition of arbitrary deprivation of liberty and the right of anyone deprived of his or her

89
FDRE constitution Article 17(1)
90
Ibid Article 17(1)
91
ACHPRArticle 7(6)
92
Working Group on Arbitrary Detention, The right of anyone deprived of his or her liberty to bring proceedings
before court, in order that the court may decide without delay on the lawfulness of his or her detention, Geneva 1
and 2 September 2014, page, available at
[Link] lastly accessed on 11/12/2016

24
liberty to bring proceedings before a court in order to challenge the lawfulness of the detention
are non-derogable under both treaty law and customary international law.93

In Ethiopia the right has recognized both on the constitution and civil procedure code as follow:-

Article 19(4) FDRE

All persons have an inalienable right to petition the court to order their physical release where the arresting police
officer or the law enforcer fails to bring them before a court within the prescribed time and to provide reasons for
their arrest.

Article 177(1) of civil procedure code

An application for habeas corpus may be made to the High Court by any person restrained otherwise than in
pursuance of an order duly made under this Code or the Criminal Procedure Code.

The Ethiopia approach is different from the international because of, first the right is only for
those whose right to liberty is unlawfully restricted which means when the police officer failed to
bring him in front of the court within 48 hours. This means it exclude unlawful detention after
appearing before court. Second difference is “an application is to get the court in order to release
of arrestee, not to obtain determination of the lawfulness of arrest”[Link] this we can conclude
this right has no full flagged recognition under Ethiopian legal system.

3.4 The Right to be segregated from Convicted person

Every individual charged with a crime has the right to be presumed innocent until proven guilty according
to law. This principle requires that pre-trial detainees be treated in accordance with their status as
unconvinced persons. Defendants must not be presented in court in a manner indicating that they may be
dangerous criminals. Public authorities must refrain from making public statements about an
accused which may prejudge the outcome of a fair trial. 95 So the separation of pretrial detainee
person from convicted person may protect the right to faire trial and the right to presumption of
innocent of the detainee. This right had recognition under ICCPR which provide, “Accused
persons shall, save in exceptional circumstances, be segregated from convicted persons and shall
93
Ibid page 7
94
WondwossenDemissie, Ethiopian criminal procedure code,AddisAbaba, sebtember,2012, page 190
95
Lawyers right watch Canada, Pretrial release and the right to be presumed innocent, page 5, available at,
[Link]

25
be subject to separate treatment appropriate to their status as unconvinced persons” 96 and also in
Africa the guiding principle on pretrial detention provides “Detainees in police custody and pre-
trial detention shall be provided with appropriate facilities to communicate with, and receive
visits from, their families at regular intervals, subject to reasonable restrictions and supervision
as are necessary in the interests of security. Such contact shall not be denied for more than a few
days”97

In Ethiopia there is no rule which govern the separate treatment of pretrial detainee from the
convicted one rather federal prison establishment proclamation govern them both as prisoner
without distinction by saying “ "Prisoner" means a convicted prisoner serving a sentence passed by a
court authorized by law; and shall also refer to a person detailed upon judicial remand” 98 from this we can
understand there is a high possibility of pretrial detained person to stay with convicted person but with
regard to treatment the same proclamation provides, “Remand and civil prisoners shall not be presumed
as offenders, and shall be entitled to treatment different from convicted prisoners." 99

3.5 The right to be treated with Humanity and with Respect for the InherentDignity of the
Human Person

The right to humane treatment in detention needs to be considered in all cases in which a person
is detained, not only under the criminal justice process. It complements the prohibition on torture
and cruel, inhuman or degrading treatment or punishment, but is engaged by a wider range of
less serious mistreatment.100 The right to humane treatment means that detainees should not be
subject to any form of hardship or constraint in addition to those that are an unavoidable incident
of detention in a closed environment. 101 Most of the time pretrial detains is subject to inhuman
96
ICCPR Article 10(2),a
97
Article 27 of principles and guidelines on the right to fair trial and legal assistance in Africa, accessed on Dec
20,2015
98
Federal Prisons Commission Establishment Proclamation No. 365/2003, 9thYear No. 90 ADDIS ABABA-9'"
September, 2003Article 2(5)

99
Ibid Article 22(3)
100
Australian government attorney general, right to human treatment in detention , available on, https:// www.a
[Link]/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSect or Guidance Sheets /Pages /Rightt
[Link]#1what , lastly accessed on 11/30/2016
101
Ibid

26
treatment including torture especially in police custody this because most of the time in police
custody there is investigation and interrogation.

All persons deprived of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person102. The respective supervisory organs of the international
and regional human rights instruments make it clear through their jurisprudence that deplorable
detention conditions constitute violation of torture, cruel, inhuman or degrading treatment or
punishment.103 Article 5 of ACHPR provides “Every individual shall have the right to the respect
of the dignity inherent in a human being and to the recognition of his legal status. All forms of
exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or
degrading punishment and treatment shall be prohibited. In Ethiopia the constitution clearly
provides “all persons held in custody and persons imprisoned upon conviction and sentencing
have the right to treatments respecting their human dignity.104

3.6 The right to Faire and Speedy Trial

Most of the time Speedy Trial Clause to serve two purposes First, they sought to prevent
defendants from languishing in jail for an indefinite period before trial. Pretrial incarceration is a
deprivation of liberty no less serious than post conviction imprisonment. 105 In some cases pretrial
incarceration may be more serious because public scrutiny is often heightened, employment is
commonly interrupted, financial resources are diminished, family relations are strained, and
innocent persons are forced to suffer prolonged injury to reputation.106 Second to Ensure a
defendant's right to a fair trial. The longer the commencement of trial is postponed, the more
likely it is that witnesses will disappear, memories will fade, and evidence will be lost or
destroyed. Of course, both the prosecution and the defense are threatened by these dangers, but

102
ICCPR article 10(1)
103
AddisuGulilat ( faculty of law, school of graduate studies Addis Abeba ), the human right of detained person in
Ethiopia case study in Addis Abeba , page 1, 2012

104
FDRE constitution article 21(1)
105
The free dictionary , speedy trial , available at, [Link] lastly
accessed on ,11/30/2016
106
Ibid

27
only the defendant's life, liberty, and property are at stake in a criminal proceeding. 107 From this
we can understand speedy trial is highly related with fair trial. The term “speedy” is relative in
the legal context. What constitutes a speedy trial in one instance might not in another. In general,
though, a speedy trial is one that occurs as soon as reasonably possible, subject to
qualifications.108

Many bills of rights grant two distinct rights, one being a right to ‘either trial within a reasonable
time or release on pending trial’ with the other being ‘the right to trial within a reasonable time. Both
domestic and international law include the right to trial within a reasonable time, often termed
the right to be tried without undue delay or the right to a speedy trial.109Article 9 (3) declares further
that "Any one arrested or detained on a criminal charge shall be brought promptly before a Judge or other
officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time
or to release. Article 5(3) of ECHR provide entitlement to ‘trial within a reasonable time or to release
pending trial’ and article 6(1) of the same convention entitled right to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law. In addition to the above
instruments ACHPR provides the right to be tried within a reasonable time by an impartial court or
tribunal.110 In Ethiopia article 19(4) provides in determining the additional time necessary for
investigation, the court shall ensure that the responsible law enforcement authorities carry out the
investigation respecting the arrested person’s right to a speedy trial. This means pretrial detention
should be in line with the right to speedy trial. Generally the right to speedy trial is a fundamental
right attached to pretrial detained person because it is highly related to liberty and it enhance to reduce
the period of stay in custody and faire trial is all the cumulative result of rights of the detainees related to
due process.

3.7 The Right to Compensation for Arbitrary Arrest and Detention

107
Ibid
108
Micah Schwartzbach, The Right to a Speedy Trial,[Link]
[Link] , lastly accessed on ,11/30/2016
109
ZvikomboreroCcadambuka, series offence and the right to trial within reasonable time, page 1, available at,
[Link] , lastly accessed on , 11/30/2016

110
ACHPR Article 7(1)D

28
Mere recognition of right has no effect unless an enforceable mechanism is provided by law. To
this end, the law has to provide possible remedies for an individual in case when he/she is subject
to arbitrary arrest or detention. In support of this, the UDHR proclaims that ‘‘everyone has the
right to an effective remedy by the competent national tribunals for acts violating the
fundamental rights granted him by the constitution or by law.’’ 1 Accordingly, every member
state to UDHR has to recognize either in its constitution or other legislation an effective remedy
for violation of human rights.111ICCPR provide that, “Anyone who has been the victim of unlawful
arrest or detention shall have an enforceable right to compensation” 112 as per human right
committee comment Unlawful arrest and detention include such arrest and detention arising within
either criminal or non-criminal proceedings, or in the absence of any proceedings at all. The “unlawful”
character of the arrest or detention may result from violation of domestic law or violation of the Covenant
itself, such as substantively arbitrary detention and detention that violates procedural requirements of
other paragraphs of article 9. 113 The financial compensation required by paragraph 5 relates specifically to
the pecuniary and non-pecuniary harm resulting from the unlawful arrest or detention. When the
unlawfulness of the arrest arises from the violation of other human right he State party may have further
obligations to provide compensation or other reparation in relation to those other violations, as required
by article 2, paragraph 3, of the Covenant 114. ECHR, Article 5, paragraph 5 states: “ Everyone who has
been the victim of arrest or detention in contravention of the provisions of this Article shall have
an enforceable right to compensation. ACHPR fail to recognize the same right. But, the
principles and guidelines on the right to fair trial and legal assistance provide “States shall
ensure, including by the enactment of legal provisions and adoption of procedures that, anyone
who has been the victim of unlawful arrest or detention is enabled to claim compensation” 115. In
Ethiopia there is no any provision provided to grant compensation for Unlawful arrest and
detention under the constitution. The fact that there is no specific provision in the constitution of
FDRE entitling such right does not mean that these persons who are the victim of unlawful
deprivation of liberty are deprived of the right to claim compensation against the wrong doer.
This is because since ‘unlawful arrest and detention’ is already declared crime under, the injured
111
AwolAlemayehu, Dana Journal of Law, Policy and Globalization [Link] ISSN 2224-3240 (Paper) ISSN
2224-3259 (Online) Vol.48, 2016), School of Law, WolaitaSodo University, page 63.
112
ICCPR Article 9(5)
113
Supra note at 34, page 15
114
Ibid, page 16
115
Article 1(h) of principles and guidelines on the right to fair trial and legal assistance in Africa

29
party is entitled to claim compensation against the criminal according to the article 101 of new
Criminal Code (CC) of the FDRE. And also it is possible to enforce using international
116

instruments Since, Ethiopia is a signatory.117

Chapter four

4. Analysis of the Implementation of Human Right of Detained Person and Undertaking

ofPretrial Dentition in the Case Area

Introduction

On the preceding chapter I have discussed the general over view of pretrial detention which
include definition, purpose and process of pretrial detention, legal frame work of pretrial
detention which include international, regional and national legal frame work and lastly the
human right of pretrial detained person.

Now this chapter will analyze the implementation of human right of the detained person and the
undertaking of pretrial detention which discussed in the previouschapter. Since the objective of
this paper is to identify and show how pretrial detention result human right violation in general
and to assess its practical implicationin case area by comparing with international and national
instruments, the chapter present how those international and national rights of the detained
person and rules and procedure for undertaking pretrial detention implemented in case area. The
chapter also presents the collected data and analysis based on international and national
instruments.
116
Supra note 57, page 62
117
FDRE constitution Article 9(4) and 13(2)

30
4.1 Analyses of the data on the implementation of right of pretrial detained person in
thecase area

Underthis topic implementation of right of pretrial detained person and under taking of pretrial
detention in ArbaMinch prison center and selected police stations will be discussed. The data are
collected through dissemination of different questioner for selected pretrial detained person in
ArbaMinch prison center, interview for detained person found in selected police station, police
officer, staff of prison administration, public prosecutor and judge found in the city and
observation in the case area.

At the time ofdissemination of questioners and undertaking of interview, there were 134 pretrial
detained person in prison center, accordingly the questioner disseminated and filled with 20
pretrial detained person in ArbaMinch prison center and interview was made with detained
person found in the city police station and, 2 public prosecutor, 2 police officer and two judges, 4
staff of the prison center found in the city. The following table shows the detail of the population
of the respective pretrial detained person and the detail of dissemination of questioners, with
percentage values in the ArbaMinch prison center.

S.N Participants category Number Method of data

collection

1 Pretrial detainee person in prison 20 Questioner and observation

center

2 Pretrial detainee person in police 10 Interview and observation

station

3 Judges 2 Interview

4 Public prosecutor 2 Interview

5 Police officer 2 Interview

Table 1, Participants of the study and method of data collections used

31
 sex Age Level of education

F M 30> 31- 46< Adult 1-8 9-12 Diploma Above

45 education diploma

Arba Minch 5 15 12 7 1 2 6 8 2 2
prison center

Table 2, Detainee’s respondent sex, age and level of education

4.2 Conditions of Arrest and Detentions

Article 9(1) of the International Covenant on Civil and Political Rights, article 6 of the African
Charter of Human and Peoples’ Rights, article 7(1) of the American Convention on Human
Rights and article 5(1) of the European Convention on Human Rights,all prohibit arbitrary arrest
and detention and state that no one may be deprived of liberty except on grounds and in
procedures established by law. Ethiopia has adopted most of these international human rights
documents. Additionally, the FDRE constitution states that “no person may be subjected to
arbitrary arrest and no person may be detained without a charge or conviction against
him.118arrest is all about restrictions of one’s liberty so it has its own requirements which is
substantive and procedural, the procedural is the way of undertaking of arrest and the substantive
one is all about the reasonable suspicion of the arresting police officer on the fact the arrested
person is committed crime article 25 of the criminal procedure code provides, “when the
investing police officer has reason to believe that a person has committed crime” this
requirement safeguard citizen from rash and unreasonable interference with liberty.119

However, the laws say so most of the detainee in police station told the researcher that they are
detained on suspicion that they committed crime of theft, conflict and other petty crime and they
are note still charged because of the police is collecting sufficient evidence and investigating the
case. According to the interview made to detained person found in police station police officers
are not in line with the substantive requirement provided under the criminal procedure code this
because police is failing to use sufficient evidence to establish reasonable suspicion.

118
FDRE constitution Article 17(2)
119
WondwosenDemissie, supra note 94

32
The other issue to be raised here is the law says “no person detained without charge or
conviction against him. Even if the law says so there are a number of detained person in different
police station without charge and also in prison center without charge and conviction. According
to interview made with detained person in shechasub-city and siqela- police station there are
detained person stayed over a month without charge and the investigating police officer told for
researcher “ investigation is not an easy task it is all about finding the truth with the existence of
individual who are hiding the truth so it need time for example there is one pending case which is
related with selling of infected butter and we sent the sample of the butter for medical
examination to AdissAbeba and they requested payment around 16500bir and still we are not
paid the money and the suspect is also in detention. Sometimes when the case is murder the
medical examination of the dead body will take over 2 months. There is also a case in which the
negligence of investigating police officer may result the above mentioned problem”. When we
see the case of the prison center in case area, As below provided under the table 25% of
respondents are under detention without charge and 75% of respondents are under trial stage
after receiving charge this shows as the rate of uncharged detainee is lower than the police
station but in the other side 25% of the detainee are spent a longer time on the waiting of charge.
Depending interview made with the staff of the prison center there are a lot of detainee without
charge for a longer period of time the respondent reflected as being uncharged is similar as
psychological torture.

Item Yes Percentage NO Percentage

Have you 15 75% 5 25%

charged?

Table 3: Detention without charge and conviction

4.3 Promptly Present Detainees before a Judicial Authority

Article 9(3) of ICCPR, 7(1)(d) and 5(3) of ECHR provides,” Anyone arrested or detained on a
criminal charge shall be brought promptly before a judge or other officer authorized by law. Similarly
article 19(3) of the FDRE constitution stipulates, a detainee must be brought before a court within 48

33
hours of arrest and have the lawfulness of their detention been [Link]
before a Court helps to minimize the risk of arbitrariness by providing judicial control over the
executive’s interference with the right to liberty in the criminal suspect.120

However, sometimes police do not present detainee to the court and other competent judicial
authority within the specified period. To that extent some detainees are held in police custody
detention center for a week without appearing before court. When we see the practice in the case
area, the public prosecutor says this right is duly respected 121 and we always cheek every day in
order to respect such right but most of the detainee in police station told me they are not brought
immediately and also one police officer told for researcher it is not always respected for different
reason like absence of judges, case load of the police officer and sometimes nature of the
investigation will require suspected no to be brought before court for example if suspect is not
only in order to arrest the other means if they know arresting of the other suspect they may
flight.122 With regard the detainee found in the prison center the table below shows that 65% of
respondents are not brought to court immediately and from the answer on the open ended
question and interview with the staff most of the respondents brought to court after week and
even there are detainee who have been brought after 25 days and 35% of respondents brought
before court within 48 hours. From the data presented we can conclude that the majority of
detains right to be brought immediately before a court (which enhance detainees right to
challenge its detention and to make detention as last resort) is violated.

Item Answer Frequency Percentage

Have you brought Yes 7 35

promptly before court? No 13 65%

Total 20 100%

Table 4: Promptly Present Detainees before a Judicial Authority

4.4 Failure to Release Pending Investigation

120
FisehaGetachew, supra note 84
121
Interview made with public prosecutor found in shecha sub-city on day
122
Interview made with investigate police officer

34
Bail right is human of every individual To procure the release of a person from legal custody,
by undertaking that he shall appear at the time and place designated and submit himself to
the jurisdiction and judgment of the court To set at liberty a person arrested or imprisoned. 123It
shall not be the general rule that persons awaiting trial shall be detained in custody, but release
may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings,
and, should occasion arise, for execution of the judgment. 124 In Ethiopia different laws govern
issue of bail for the purpose of this paper I will discuss the criminal procedure code provision
which allows and deny bail and anti vagrancy proclamation which totally deny bail.

According to interview made, questioners disseminated and observation there are detained
person who requested bail and denied based on the legal requirements provided on the law and
also there are a number of pretrial detained person who suspected for petty offence and they are
subject to bail based on the law governing and requested bail but denied because of their
economic status to pay for the bail as provided under article 63 of the [Link] this because us
per the response of questioner and interview most of detained are unemployed, with law
income to pay for bail and without habitual resident and sometimes the judge require a high
amount of surety to be released on bail125 from this we can understand that sometimes
economic states is determinant factor for pretrial detention. The same is true in case of detainee
in prison center, as provided under the table 5, 75% of respondents requested bail and 60 % of
the respondents which requested bail denied due to the nature of the crime they suspected and
40 % denied due to their economic status or their failure to provide guaranty for their
reappearance. From this we can conclude that there is a lot of detainee who deprived their
liberty due to their failure to bring guaranty.

Item Answer Frequency Percentage

Have you requested bail? Yes 15 75%

No 5 25%

123
Black's Law Dictionary Free 2nd Ed, available at, [Link]
124
ICCPR article 9(3)
125
Interview with investigate police officer of shecha sub city police station ArbaMinch

35
 Total 20 100%

Table 5: About bail request

Item Answer Frequency Percentage

Why you denied Nature of thecrime 6 40%

bail?
Failure to provide guaranty 9 60%

Table 6: reason for denial of bail

4.5 Prolonged Pre-trial Detention

As it is tried to discuss onthe introduction pretrial detention by itself is not human right violation
rather human right violation come in to existence at the time of undertaking including its
reasonability and when it become prolonged. Article 9(3) of ICCPR provides the right of
individual detained to be tried with reasonable time also article 20(1) of FDRE constitution
provide public trial with reasonable time and reasonability most of the time depends on the type
and nature of crime. Even if the laws say so in practice a suspect individual detained for
unreasonable time at the time of investigation and awaiting trial. Based on interview made with
public prosecutor and judge in case area there is prolonged detention which can be categorized
as unreasonable in line of the national and international instruments and they emanated from
case load, shortage of mane power(judge, public prosecutor and investigative police officer),
delay on medical examination, shortage of economic resource , ( interview made with
investigative police officer told for researcher, existence of budget constrain for investigation) ,
sometimes conflict of jurisdiction as to whose power is the case federal, regional, zonal , or

36
power of the city is reason for delay and article 59(2) of the criminal procedure code is main
126

reason because the police always request remand for further investigation and the work load of
courts is a main reason this because sometimes every appointment may take over a month and
there might be a number of appointments to hear evidence, to examine witness , to pass judgment
this is because the judge is busy throughout the month due to case load. 127
Investigate police
officer told for researcher “ the number of investigate police officer is always constant but the
number of the suspect vary every day sometimes without doing anything or accomplishing my
investigation the day of court come so I have no option I will prefer to request remand Based on
article 59(2) rather than releasing him. 128 However there is one good practice in shecha sub-city police
officer which is there is first instance court inside the police station and I observed and assured from
interview its positive effect on speedy trial of detained person . With regard to prison center as
majority of respondents are awaiting trial for over 5 month averagely And interview made with
the staff of the prison center told for researcher most of detainees are subject for pro longed
detention for the purpose of investigation and trial. In addition representative of detainee in the
center told for researcher the fact sometimes some pretrial detainees become mental ill due to
their tension on their final decision and their detention without conviction.129

4.6 The right to be treated with humanity and with respect for the inherent dignity of
thehuman person

The right to humane treatment in detention needs to be considered in all cases in which a person
is detained, not only under the criminal justice process. It complements the prohibition on torture
and cruel, inhuman or degrading treatment or punishment, but is engaged by a wider range of
less serious mistreatment.130All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human person .131In Ethiopia FDRE constitution
126
Interview made with public prosecutor
127
Interview made with the judge found in the city
128
Interview made with investigative police officer
129
Interview made with representative of detained person in ArbaMinch prison center on day
130
Australian government attorney general, right to human treatment in detention, available at ,[Link] ww. a g.
[Link]/RightsAndProtections/HumanRights/Human-rights-scrutiny/PublicSectorGuida nceSheets/ Pages /Rightt
[Link]#1what , lastly accessd on 11/30/2016
131
ICCPR article 10(1)

37
provides “all persons held in custody and persons imprisoned upon conviction and sentencing
have the right to treatments respecting their human dignity.132

However, according to interview made for detainee found in police station majority of detainee
told for researcher as they are not subject to inhuman treatment especially as they are free from
torture but, there is poor treatment which is directly related, no food, water and medical access
and the room in which detention undertaken is very narrow in which the detention is undertaken
in a suffocated manner. One detainee told for researcher “as you are looking this all detainee is
subject to this room without open window, with poor personal hygiene of detainees, sometimes
we are subject to transmissible disease” and most of the staff of different police station told for
researcher, if we are assure the detainee has no ability to afforded his food and medical service
we will transfer to prison center for better protection. With regard to detainee found in the prison
center, the below table shows that, 65% of respondents admitted as their human right is respected
in a partial manner this means there is some sort of human right violation in the center and 30%
of the respondents admitted as their human right is fully respected lastly 5% responded as human
right is not respected totally.

Item Answer Frequency Percentage

Is your human right Yes partially 6 30%

respected in prison center?
Yes partiality 13 65%

NO 1 5%

Total

Table 7: respect of human right

Based on the above presented data we can conclude that the human right respect in ArbaMinch
prison center is good even if the full respect of human right is lower. But the problem is the fact
does the detainee have knowledge about what is human right? To answer this question it is better
to see table no…. and as per the data presented in the table 65% of respondents has no
knowledge about human right they have and 35% of respondents have knowledge about human
right when they mention some of their right majority of respondents list only the right to food
132
FDRE constitution article 21(1)

38
and medical care from this table we can conclude that most of respondents have no knowledge
about the human right they have and this may affect the reliability of data presented on the table
8 but from the interview made with the representative of detains and some other detainees there
is good human right condition.

Item Answer Frequency Percentage

Do you have knowledge Yes 7 35%

about human right?
No 13 65%

Total 20 100%

Table 8: knowledge about human right

4.7 The right to legal council

The right to legal council is a fundamental right of detained person recognized under both
international and national instruments. ICCPR provides that “to be tried in his presence, and to
defend himself in person or through legal assistance of his own choosing; to be informed, if he
does not have legal assistance, of this right; and to have legal assistance assigned to him, in any
case where the interests of justice so require, and without payment by him in any such case if he
does not have sufficient means to pay for it.”133 And nationally the constitution provides, “Every
accused person is granted the right to be represented by legal counsel of their choice and if they
do not have sufficient means to pay, to be provided with legal representation at state expense.134
However, based on interview and observation the researcher identified no one detainee in police
station in the case area legal representation by government, merely there is on lawyer in Gamo
Area High Court who gives assistance and consultancy in a limited manner. The reason is no
institution takes in to consideration this issue at the time of budgeting annual budget and the
other reason is almost all detainee have knowledge about the right so they will not request the
service.135 With regard the detainee found in the city as provided under the table 70% of
respondents has no legal representation and except for 2 who has no legal representation due
absence of any charge the other rest all are due to economic reason which means they have no

133
ICCPR article 14(3), D
134
FDRE constitution Article 20(5)
135
Interview made with judge found in the city

39
money to pay for legal representative 136 and as discussed on table 9, they lack human right
knowledge this also a reason for their non request for representation. From this we can conclude
the detainee in the case area loused one of their fundamental rights as a criminal suspect which is
fundamental safeguard against different ill-treatment on suspect in detentions.

Item Answer Frequency Percentage

Do you have legal Yes 6 30%

representative and
No 14 70%
consular?
Total 20 100%

Table9: About legal representation and legal counseling

4.8 Effects of Pretrial Detention on the Family Relationship of Detainee His Family

As it is mentioned on the background of the study and statement of the problem effect of pretrial
detention is not only on the detainee but also on his family. Most of the time pretrial detention
affects the family of the detainee in case when the detainee is income source of the family, the
alienation of the detainee from them, psychological and social pressure especially on child and
spouses of the detainee. As provided under table no 11, 45% of respondents is married and they
have child and 25% are married but no child. So the family of those detainees has a high
probability to face the above mentioned problems. In addition the alienation of the detainee from
his family is a major problem to detainee.

Item Answer Frequency Percentage

What is your Family Married and no child 5 25%

Status? Married with child 9 45%

Un married 6 30%

136
From the open ended question filled by detainee

40
 Total 20 100%

Table: 10 the family status of pretrial detainee

Chapter five

5. Conclusion and recommendation

5.1 Conclusion

41
Human rights universal and inalienable simply being human is suffice to exercise human right.
Respecting human right is duty of ever one especially the government. In the other side it is
justifiable to limit ones right for a reasonable purpose as per the relevant laws; one of limitation
of right which categorized under reasonable purpose is limitation of right for crime investigation
and undertaking of trial. Even if the limitation of the right is justified by reasonable purpose it is
not mean the suspect will lose his every right as human being which means he retain a number of
human right except his liberty and some other very related right with his suspicion. The rights
are governed under in different international and national instruments.

Some of internationally and national granted rights for pretrial detained person are, the right to
liberty the right to life, freedom from torture, freedom from arbitrary arrest, right to be informed
immediately of the reasons for arrest, right to be brought promptly before a judge, right to silence
and prohibition against coerced confessions, the right to humane conditions of detention,
presumption of innocent, the right to segregation from convicted prisoner, and the right to legal
counsel and consultation including family visit are among others. What matter is the practical
implementation and some national legal gaps which hinder the applicability of the above
mentioned right.

As internationally accepted norm deprivation of liberty is justifiable for the purpose of crime
investigation and undertaking of trial us a last resort and by respecting internationally and
nationally recognized right of pretrial detained person. However, the finding of this study shows
the practice is not as provided on the law, police often arrest people without sufficiently fulfill
the requirement of substantive element which is reasonable suspicion which affect element of
last resort and which result individual to detainee in police station without access to food,
medical, and without suitable room for detention with this regard the condition of treatment is
better in prison center than that of the police station. In addition Police are not bringing detainees
before a court of law within a specified period of time, Arresting authorities are frequently not
informing suspects their rights, and Suspects are detained for long time without trail and denied
right to bail because of their economic status.

The study also found that, the pretrial detention is prolonged or unreasonable even which can be
categorized as arbitrary. The main reason for the prolonged pretrial detention is article 59(2) of
the criminal procedure code which provided un limited right of police to request remand, case

42
load of investigate police officer, public prosecutor and courts, lack of resource which can be
categorized as economic and human resource, lack advanced crime investigation material
including delay on medical examination, absence of diligence and competence on the personal
which participate through process of investigation and trial, and absence of supervision by
respective body.

Generally undertaking of pretrial detention is in contrary to internationally and nationally granted

right of pretrial detainee person. The factors which are affecting the respect of the human right of
the pretrial detainee person in case area can be classified in to three main categories, First acts or
failure to act of Law enforcement officials which has direct relation to act of police in violating human
right of detainee and failure of police to investigate the crime in a speedy manner, failure of public
prosecutor to institute charge immediately and failure to supervise the condition of detention, failure of
courts to undertake trial in speedy manner and to request guaranty of bail taking in to consideration
economic states. Second, absence of knowledge of detainee about his human right and absence of legal
representation, which enhance to request bail and other right including challenging his physical release
and condition of detention. Thirdly gaps on the legal instruments governing the issue in compeer
with international instruments like the right to compensation for arbitrary arrest recognized in
different instruments but not in our case.

5.2 Recommendations

The study has tried to investigate and to show problems related to respect of human right of
pretrial detained person in case area. The following recommendations are what the researcher
believes if implemented will help to solve the problems regarding respecting human rights in
criminal investigation motioned in this paper.

 Measure should be taken to reduce number of pre-trial detainees by applying alternative

measure to detention. Pre-trial detention must be last resort in criminal proceedings.

 Amending the existing law which created gap on the implementation and incorporating
other relevant rights in to the national system.

43
  Government should to improve professional and legal knowledge of law enforcement

officials especially police officers by using short and long term training on human
rights particularly on respecting and protecting rights ofpretrial detained person.
 Measure should be taken to improve methods of crime investigation with regard
technicality, speed and effectiveness. And providing available man power and budget for
the purpose of crime investigation.
 Government must build appropriate building which is suitable to undertake pretrial trial
detention which is separate from convicted person or improving the quality of the police
station by including access to food and medical care.
 Courts should to implement a system which allows undertaking trial in a speedy manner.
 Measure should be taken to improve human right knowledge of the pretrial detained
person. This is not only the duty of government but also duty of every concerned NGO,
law schools, different association and any individual who has knowledge of human right.
 There should be a visit of police stations and prison center by members of House of
Peoples Representatives or Regional Council members, independent institutions like
Human Rights commission, different NGO and any other relevant bodies to examine the
implementation of human right of pretrial detained person.
 The society in general and law enforcement officers in particular should to respect the
right of pretrial detainee person to be presumed innocents.
 it is necessary to make further researches on rights of pre-trial detained person especially
in police station this because most researches focus on the right of prisoners and
condition of detention in prison center

Bibliography

I. Books, Journals and Reports

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  AddisuGulilat, The Human Rights Of Detained Persons In Ethiopia; Case Study In
Addis Ababa, A thesis Submitted to Addis Ababa University, School Of Graduate
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 AdneDesta, Pretrial Detention In Light of Human Rights Instruments: The Law and Practice. Addis Abeba,
Ethiopia July, 2010
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 Paul Roberts , Law and Criminal Investigation, Willan Publishing Ltd, ps. 92-146, 2007
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II. International and Regional Human Right Instruments

 African Charter on Human &Peoples‘Rights, Adopted 27 June 1981, OAU
[Link]/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered in to force 21 October 1986
 American Convention on Human Rights, Opened for signature and ratification on 22
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 Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, Adopted by General Assembly Resolution 43/173 of 9 December, 1988
 European Convention for the Protection of Human Right and Fundamental Freedoms,
Adopted on 4 November 1950 by the Council of Europe and entered in to force on 3
many 1953
 international Covenant on Civil and Political Rights, Adopted and opened for signature,
ratification, and accession by General Assembly Resolution 2200 A (XXI) of 16
December 1966

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  International Covenant on Economic, Social and Cultural Rights, adopted by General
Assembly Resolution 2200 A (Xxi) of 16 December 1966, entered into force 3 January
1976
 Standard Minimum Rules for the Treatment of Prisoners, Adopted by first United
Nations Congress on the Privation of Crime & the Treatment of Offenders, held 107at
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 Universal Declaration of Human Rights, Adopted and proclaimed by General Assembly
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 UN Human Right, General comment No. 35 on, Article 9 (Liberty and security of
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III. National laws

 constitution of the Federal Democratic Republic of Ethiopia, 1995, proclamation No
1,Negarit Gazetta, year 1,No 1 2.
 Criminal Code of the Federal Democratic Republic of Ethiopia, Federal NegaritGazzeta,
Proclamation No. 414/2004
 Criminal Procedure Code of Ethiopia, NegaritGazetta, Proclamation No. 185/1961
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 the revised constitution of SNNPRS, proclamation of SNNPRS No 35 of 2001
 Treatment of Federal Prisoners, Council of Ministers Regulations No. 138/2007

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 R Berry “The Socioeconomic Impact of Pre-trial Detention: A Global Campaign for Pre-
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