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East: Analysis From Washington -- Jailed Before Judgment

Washington, 21 November 2000 (RFE/RL) -- A new study by the Soros Foundation has found that almost one-third of prisoners in post-communist countries have been waiting for trial for more than a year and that one in 10 has been incarcerated for more than two years without having his day in court.

That in turn means that almost 50 percent of the inmates now in prisons there are men and women who have not yet been found guilty of anything, a sharp increase since 1989 and one that is already having increasingly negative consequences for public health, criminality, and the authority of the judicial system.

And officials in these countries do not expect this trend to change anytime soon. Last week, for example, Aleksandr Tochelovskis, the deputy director of Latvia's prison system, said that "if growth continues at the present rate, our prisons will be filled with people who haven't been found guilty."

Most legal systems have some form of pre-trial detention for those charged with particularly serious offenses and are considered to be a danger to themselves or to the community. But most democratic regimes also have arrangements to allow those waiting for trial on minor charges to post bond and remain free until trial.

In many Eastern European countries, however, no bail bond system yet exists, or it is too expensive for most people and especially the young. As a result, people are sometimes incarcerated for long periods even when they are charged with petty crimes. In Hungary, for example, one news agency reports that a man has been in jail for more than a year pending trial on charges that he stole 138 rolls of toilet paper.

This massive use of pretrial detention already is having a serious negative impact on public health. In many of these countries, prisons have become virtual incubators for disease. In the Russian Federation alone, almost 10 percent of all prisoners now have tuberculosis, and many of them contracted it while they were behind bars. And in several other countries across this region, the situation is still graver.

Still more serious for the future, the massive incarceration of those who have not been found guilty of any crime is breeding more criminals. Jaap Doek, a Dutch juvenile court judge who serves on the United Nations Committee on the Rights of the Child, said that locking up young people in this way is making "hardened criminals out of 15-year-olds."

That is particularly true in a region where many governments do not segregate youthful first offenders from the more hardened adult criminals. As a result, young people there who are not in fact guilty of any offense may be given a criminal education by their elders simply while waiting for their trial dates.

And perhaps most serious of all, this practice is alienating many people from the judicial system, which is one of the foundations of democracy and a civil society by allowing officials to put people in jail without a judicial finding.

But according to local human rights activists, there is little popular support for any change. Anyone who criticizes locking up those charged with criminal violations, these activists suggest, is likely to be labeled "soft on crime," something few leaders are prepared to risk.

For all these reasons, such an approach appears certain to backfire. Judges who use pretrial detention as a form of punishment are in fact undercutting the fundamental constitutional rights of all citizens. Moreover, those who experience such detention are likely to be alienated, Doek observes, as are their families and other members of society at large.

Post-communist governments regularly protest that they do not have the funds to change the situation. Some countries, like Estonia, are even considering privatizing their prison systems to improve the situation. But human rights activists there argue that the problem is not so much a lack of money than a lack of will to address the problem of those jailed before judgment.

Changing procedures and popular attitudes in this area is unlikely to be easy, but a failure to do so almost certainly will limit the prospects for democracy and rule of law in a region that has known far too little of it in the past.