Thu August 4, 2011
Behind Bars: A Brief History Of The Defendant's Cage
Originally published on Wed May 23, 2012 11:35 am
The sight of Hosni Mubarak bedridden and caged in a Cairo courtroom as his trial opened this week was perhaps an unbelievable moment for Egyptians who lived for decades under the former president and his feared secret police.
For others around the world, the images of Mubarak, his sons and other co-defendants held behind interlocking steel mesh have been shocking.
Defendant's cages like the one that housed the 83-year-old former leader may not be common outside Egypt, but they're still in use in parts of the Middle East, Latin America and Eastern Europe.
It is difficult to pin down precisely when the practice began, but it seems to have originated from a time "when captives were put in cages in ancient Rome and Mesopotamia," says M. Cherif Bassiouni, a professor at DePaul University's College of Law who has worked for the United Nations on human-rights issues.
By the Middle Ages, he says, defendant's cages were a regular feature of many European courts. "The original rationale for doing it was the fear that criminal defendants would attack or intimidate witnesses or judges," Bassiouni says.
The use of cages has largely fallen off over time, but it persists to some degree around the world — places like Russia, Moldova, Uzbekistan, Armenia, Kuwait, Iraq and Egypt, as well as very occasionally for "especially violent criminals" in Spain, Italy, France and Germany, says Jenia Iontcheva Turner, a professor at SMU Dedman School of Law in Dallas.
Even in the U.S., it is not unheard of. For example, a 48-year-old woman was held in a cage during a pretrial hearing last month in Westminster, Calif.
Sarah Leah Whitson, executive director of the Middle East and North Africa division for Human Rights Watch, says that while placing someone in a defendant's cage might sometimes be justified, it undercuts the presumption of innocence.
"There are certainly less extreme means you can use to protect the proceedings, such as handcuffs," she says.
Turner says cages are more likely to impact the presumption of innocence in a jury trial than one before a judge or magistrate. She also notes that the construction of the cages, themselves, can be a factor.
"Mubarak was in something like a mesh cage, but if you look at the pictures of Saddam Hussein, he's in something open and less obtrusive," Turner says, referring to the former Iraqi dictator's 2006 trial. "In Europe, glass compartments have been used more often."
In the case of Mikhail Khodorkovsky, the Russian oil billionaire who was tried on and convicted of corruption charges in 2005, the fact that he was caged in the courtroom was brought to the European Court of Human Rights. The court finally ruled earlier this summer that Khodorkovsky had been subjected to various forms of ill treatment from the time of his arrest, including "inhuman and degrading conditions in the courtroom."
In the U.S., "there is a basic right that defendants have to appear in court free of visible restraint, such as leg irons or handcuffs or prison garb," says Darryl Brown, a professor at the University of Virginia School of Law.
"But defendants can lose that right if they are very disruptive or make threats. A judge can conclude that they have to be restrained," he says.
In Egypt, Bassiouni says he has pushed for the elimination of the cages — even in the case of someone like Mubarak.
"It's an opportunity for the Egyptians to show that this is not about vengeance, it's about justice," he says. "It's also about showing the new face of Egypt, that it has a future commitment to the rule of law and to human rights."