Essex paper 3
Initial guidance on the interpretation and implementation
of the UN Nelson Mandela Rules
PROMOTING
THE NELSON
MANDELA
RULES
Based on deliberations at an expert meeting organised by
Penal Reform International and Essex Human Rights Centre
at the University of Essex, 7
–
8 April 2016.
Dedicated to the memory of Sir Nigel Rodley, 1941
–
2017.
Penal Reform International and the Essex Human Rights Centre | 2
Essex paper 3: Initial guidance on the interpretation
and implementation of the UN Nelson Mandela Rules
Based on deliberations at an expert meeting organised by
Penal Reform International and the Essex Human Rights Centre
at the University of Essex, 7-8 April 2016.
This publication may be freely reviewed, abstracted, reproduced and
translated, in part or in whole, but not for sale or for use in conjunction
with commercial purposes. Any changes to the text of this publication
must be approved by Penal Reform International. Due credit must
be given to this publication. Enquiries should be addressed to
Penal Reform International
Head Office
1 Ardleigh Road
London N1 4HS
United Kingdom
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Email: [email protected]
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www.penalreform.org
Human Rights Centre
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Telephone +44 (0)1206 874736
www.essex.ac.uk/hrc
First published February 2017
ISBN: 978-1-909521-57-5
© Penal Reform International 2017
Penal Reform International (PRI) is an independent non‑governmental organisation that develops
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ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES
Penal Reform International and the Essex Human Rights Centre | 3
Contents
Introduction 5
Chapter 1:
Diginity 7
Overarching Requirement to Respect Human Dignity 7
Minimising the Difference between Life in Prison and at Liberty 9
Safety and Security 10
Prohibition of Torture and Other Ill-Treatment 11
Principle of Non-Discrimination 12
Conduct in Case of Death of a Prisoner 13
Searches of Prisoners, Cells and Visitors 14
Prisoners with Disabilities 18
Chapter 2:
Prison management 21
Basic Principles 21
Allocation, Classification, Admission 22
Provision of Information 26
Prison File Management 29
Institutional Personnel 34
Inspections and External Monitoring 38
Chapter 3:
Contact with the outside world 43
Introduction 43
Contact with Family and Friends 43
Access to Legal Representation 50
Transfers 55
Foreign National Prisoners 59
Chapter 4:
Healthcare 61
General Principles 61
Medical Ethics 66
Health-care Assessment on Admission 70
Medical Assistance in Urgent Cases 72
Isolation and Segregation on Grounds of Public Health 72
Fitness to Work Determinations 73
Daily Access to Prisoners 73
No Role of Medical Staff in Discipline or Punishment 74
Documentation of Signs of Torture 75
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Chapter 5:
Restrictions, discipline and sanctions 77
Introduction 77
General Principles 78
Procedural Rights in Disciplinary Proceedings 81
Types of Sanctions and Restriction 84
Solitary Confinement 86
Reducing the Negative Impact of Sanctions and Restrictions 92
Record-Keeping 93
Instruments of Restraint 93
Role of Medical Personnel 96
Chapter 6:
Incident management 98
Safety and Security 98
Scope/meaning of Safety and Security 99
Use of Force and Arms 107
Complaints 113
Investigations 119
Annex: List of participants 124
Note on terms used in this document:
Where the document refers to Rules, it refers to the Nelson Mandela Rules. The term ‘revised Standard Minimum Rules for
the Treatment of Prisoners’ and ‘Nelson Mandela Rules’ is used interchangeably on purpose, seeking to emphasise that the
Rules are no newly created standard, but an updated version of the 1955 Standard Minimum Rules (SMR). The terms ‘Essex
group’ or ‘experts’ refer to the participants of the expert meeting on 7-8 April 2016 at Essex University in Colchester, UK.
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Penal Reform International and the Essex Human Rights Centre | 5
Introduction
“
The full contribution which our prisons can make towards a permanent reduction in the
country’s crime rate lies also in the way in which they treat prisoners. We cannot emphasise
enough the importance of both professionalism and respect for human rights.
”
Nelson Mandela, Speech to the South African Department of Correctional Services in 1998.
On 17 December 2015, the UN General Assembly
adopted the revised UN Standard Minimum Rules for
the Treatment of Prisoners (the Nelson Mandela Rules),
bringing to a conclusion a four-year process of review.
The review had been completed by the UN Commission
on Crime Prevention and Criminal Justice in May 2015
after consensus was reached at the fourth and last
Inter-governmental Expert Group Meeting in South
Africa. The revision of the Standard Minimum Rules for
the Treatment of Prisoners (SMR) was a historic event
in that it was the first time that an international standard
had been updated. The international community chose
a ‘targeted revision’ approach, identifying the most
outdated areas and rules whilst leaving the structure
and the majority of the Rules unchanged.
Eight substantive areas have been subject to revision:
•
Respect for prisoners’ inherent dignity
•
Medical and health services
•
Disciplinary measures and sanctions
•
Investigations of deaths and torture in custody
•
Protection of vulnerable groups
•
Access to legal representation
•
Complaints and independent inspection
•
Training of staff
The Resolution adopting the revised Rules encourages
Member States to endeavour to improve conditions in
detention, consistent with the Nelson Mandela Rules.
It also encourages the application of all other relevant
and applicable United Nations standards and norms.
The Essex group
During the process of the review,
Penal Reform International and the University of Essex’s
Human Rights Centre organised two expert meetings
and provided recommendations on possible wording for
revised Rules, as well as a rationale for the suggested
changes, based on a screening of existing human
rights and criminal justice standards and norms.
The deliberations of the group of experts – which have
become known informally as the ‘Essex papers’ –
were submitted to the Inter-governmental Expert Group
Meeting (IEGM) established at the UN level to negotiate
a review of the Rules in November 2012
1
and in
March 2014.
2
Drawing on the positive experience of these
consultations, the ‘Essex group’ was reconvened for
a third meeting of experts on 7-8 April 2016 in order
to develop guidance on implementing the revised
UN Standard Minimum Rules for the Treatment of
Prisoners following their adoption as the Nelson
Mandela Rules.
The consultation was, like the first two meetings,
financially supported by the UK Government (UKAID).
Purpose of this document
The purpose of the meeting was to reflect on the revised
areas of the Standard Minimum Rules, and specifically to:
•
identify specific Rules, and language, that require
further guidance as to their interpretation;
•
offer practical and concrete interpretation of specific
Rules, drawing on existing international standards
and practice;
•
identify challenges in implementation and good
practice examples.
The deliberations of the meeting took place in plenary
and in six working groups, which inform the structure
of this document. They focused on the areas and
Rules revised, but took into account unchanged
provisions where they were relevant in the context
of the revised text.
1. Summary of an Expert Meeting at the University of Essex on the Standard Minimum Rules for the Treatment of Prisoners Review, 21 November 2012,
UNODC/CCPCJ/EG.6/2012/NGO/1, available in Arabic, English, French, Spanish and Russian; www.unodc.org/unodc/en/justice-and-prison-reform/
expert-group-meetings5.html#_ftn3
2. Summary of an Expert Meeting at the University of Essex on the Standard Minimum Rules for the Treatment of and Second Report of the Essex Expert
Group on the Review of the Standard Minimum Rules for the Treatment of Prisoners, 20 March 2014, available at: http://www.unodc.org/documents/
justice-and-prison-reform/EGM-Uploads/PRI_ESSEX-2nd-paper.pdf
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The group emphasised that, while consolidating
relevant guidance for prison administrations and staff
in one document, the revised SMR will continue to be
supplemented by other criminal justice and human
standards, such as the UN Bangkok Rules for women
prisoners, the UN Beijing Rules with regard to children
and the UN Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials.
The ‘Third Essex Paper’
The document seeks to provide initial guidance on
implementation and to serve as a basis for initiatives
to develop more comprehensive guidance, training
materials, or projects on implementation.
Using the minutes of deliberations of each Working
Group as a starting point, the authors drew on
additional comments provided by experts following
the dissemination of draft chapters and on a screening
of other relevant sources, including other treaties and
soft law, reports and recommendations of UN Treaty
Bodies and Special Procedures, as well as other
relevant regional and international bodies. They took into
consideration the rationale of changes to the Rules and
the overarching principle expressed in the course of the
review process that none of the changes must lower any
of the existing standards.
3
In terms of assessing progress in the implementation of
the SMR, the authors would like to recall the Procedures
for the Effective Implementation of the Standard
Minimum Rules for the Treatment of Prisoners, in
particular Procedure 5, which calls on states to inform
the Secretary-General of the United Nations every
five years of the extent of the implementation and the
progress made, and of the factors and difficulties, if any,
affecting their implementation.
4
We would also like to recall the resolution of the Human
Rights Council on human rights in the administration of
justice, adopted in 2015, which ‘invites States to assess
their national legislation and practice in accordance with
those standards, including the revised United Nations
Standard Minimum Rules for the Treatment of Prisoners
(Mandela Rules)’.
5
We hope that this paper will provide a useful starting
point for policy-makers, prison administrations and
staff in the implementation of the revised Standard
Minimum Rules for the Treatment of Prisoners, as well
as for health-care professionals, monitoring bodies
and inspectors, inter-governmental organisations,
NGOs and academia.
We would like to thank the participants for their helpful
insights and for sharing their expertise (see list of
participants in Annex 1). The present document reflects
the broad majority agreement in discussions at the
meeting and consultations subsequently. We would
also like to thank Sharon Critoph for her contribution
to the drafting process, to Harriet Lowe for the thorough
editing and proof-reading, and to Oliver Robertson for
his support on footnoting this paper.
Andrea Huber Lorna McGregor
Policy Director Director
Penal Reform International Essex University,
Human Rights Centre
3. Report on the meeting of the Expert Group on the Standard Minimum Rules for the Treatment of Prisoners held in Vienna from 31 January to 2 February
2012, UNODC/CCPCJ/EG.6/2012/1, 16 February 2012, Recommendation 4. Economic and Social Council Resolution on Standard Minimum Rules
for the Treatment of Prisoners, 20 September 2013, E/RES/2013/35, OP 10; UN General Assembly Resolution on Torture and other cruel, inhuman or
degrading treatment or punishment, 22 October 2013, A/C.3/68/L.33, 32 bis; Human Rights Council Resolution on human rights in the administration
of justice, 23 September 2013, A/HRC/24/L.28, OP 16; Commission on Crime Prevention and Criminal Justice Resolution on Standard Minimum
Rules for the Treatment of Prisoners, 25 April 2013, E/CN.15/2013/L.22/Rev.1, OP 10 (endorsed by ECOSOC, 20 September 2013, E/RES/2013/35
and subsequently endorsed by UN General Assembly); Report and recommendations of the Intergovernmental Expert Group Meeting in Buenos
Aires, 13 December 2012, UNODC/CCPCJ/EG.6/2012/4, Para.4; UN General Assembly Resolution, 20 December 2012 A/RES/67/188, OP 5;
Economic and Social Council Resolution, 10 August 2012, E/RES/2012/13, OP 5; Commission on Crime Prevention and Criminal Justice Resolution,
E/CN.15/2012/L.4/Rev.2, 24 April 2012, OP 5; UN General Assembly Resolution, ‘Standard Minimum Rules for the Treatment of Prisoners’, UN Doc.
A/RES/68/190, 11 February 2013, OP 10; UN General Assembly Resolution ‘Standard Minimum Rules for the Treatment of Prisoners’, UN Doc.
A/C.3/69/L.3, 26 September 2014, OP 6; UN General Assembly Resolution, United Nations Standard Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules), A/RES/70/175, 16 December 2015, preamble.
4. UNODC, Compendium of United Nations standards and norms in crime prevention and criminal justice, 2016, Procedures for the effective
implementation of the Standard Minimum Rules for the Treatment of Prisoners (Economic and Social Council resolution 1984/47, annex, of 25 May
1984).
5. Human Rights Council, Resolution on Human rights in the administration of justice, including juvenile justice, 29 September 2015, A/HRC/30/L.16, OP5
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Chapter 1
Dignity
Issues/rules covered:
• Prohibition of torture and other ill-treatment (Rule 1)
• Conduct in case of death of a prisoner (Rule 72)
• Searches of prisoners, cells and visitors (Rules 50-52, 60)
• Non-discrimination (Rule 2)
• Prisoners with Disabilities (Rules 5(2) and 109)
This chapter addresses the meaning and scope of a number of new rules introduced in the
Nelson Mandela Rules that require respect for the inherent dignity of prisoners. These include the
introduction of an overarching framework on human dignity and the specic rules listed above.
Due to time constraints, the Essex Group was unable to discuss all of the new Rules that address
human dignity. These included Rules 29 (children accommodated in prison with their parent),
Rules 96 and 97 (on work in prisons and the prohibition of slavery) and the protections and
treatment necessary to protect prisoners and groups in positions of vulnerability. The Group
noted the importance of developing guidance on the interpretation of these Rules and recalled
previous coverage of these issues in the rst and second reports produced by the Essex Group as
submissions to the UN when developing the revised SMR.
1
Overarching Requirement to Respect Human Dignity
The Nelson Mandela Rules contain a new section entitled ‘Basic Principles’. The Essex Group of
Experts underscored that the concepts contained in Rules 1 to 5 of this new section should not be
seen as abstract. Rather, together they provide an overarching description of the concrete action
states are required to take to ensure respect for prisoners’ inherent human dignity.
The Essex Group noted the signicance of the fact that the requirement to ‘respect human dignity’
is the very rst standard set out in the new Rules. They pointed to Article 1 of the Universal
Declaration of Human Rights which provides that, ‘[a]ll human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and should act towards one
another in a spirit of brotherhood’. They noted that ‘human dignity’ is not a singular rule but a
general principle that underpins all of the Rules. This means that each Rule within the Nelson
1
Expert Meeting at the University of Essex on the Standard Minimum Rules for the Treatment of Prisoners Review (20
November 2012) available at: http://www.essex.ac.uk/hrc/documents/practice/summary-expert-meeting-20-nov-2012.
pdf , see L. Other areas highlighted by experts (1)Children of incarcerated parents (pp.37-39), L.(3) Labour in Detention
(pp.40-41), G. Protection and special needs of vulnerable groups deprived of their liberty (pp.26-27)(First Report of the
Essex Group of Experts); Second Report of the Essex Expert Group on the Review of the Standard Minimum Rules for
the Treatment of Prisoners (March 2014) available at: http://www.essex.ac.uk/hrc/documents/practice/second-report-
of-essex-expert-group-smr-revision-19-march-2014.pdf , see ‘Children of imprisoned parents’ (paras. 36-39) (Second
Report of the Essex Group of Experts)
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Mandela Rules can be interpreted as a detailed description of how dignity should be respected
within prison.
The UN Special Rapporteur on Torture has noted that,
The principle of humane treatment of persons deprived of liberty constitutes the starting
point for any consideration of prison conditions and the design of prison regimes. It
complements and overlaps the principle on the prohibition of torture and other ill-treatment
by requiring States (and consequently the prison authorities) to take positive measures
to ensure minimum guarantees of humane treatment for persons in their custodial care
(see Human Rights Committee general comment No. 21, para. 3). Treating all persons
deprived of their liberty with humanity and with respect for their dignity is a fundamental
and universally applicable rule, the application of which, at a minimum, cannot be
dependent on the material resources available in the State party to the International
Covenant on Civil and Political Rights (para. 4).
2
Rules 1 to 5 of the Nelson Mandela Rules explain that states not only have negative duties to
ensure that the treatment of prisoners does not offend human dignity but also positive obligations
that require the prison administration to take specic action to protect prisoners’ dignity. These
positive duties are set out throughout the Rules. For example, Rules 12 to 21 address basic
issues fundamental to a prisoner’s inherent dignity on accommodation, hygiene, clothing and food,
requiring the prison administration to take positive action such as:
• Ensuring that ‘all parts of the prison regularly used by prisoners [including cells, bathrooms
and eating areas are] properly maintained and kept scrupulously clean at all times’
3
;
• Providing prisoners ‘with water and toilet articles as are necessary for health and
cleanliness’
4
;
• Where a prisoner is not ‘permitted to where his or her own clothing’, providing him or her with
adequate and clean clothing suitable for the climate
5
;
• Ensuring all prisoners have their own bed and ‘separate and sufcient bedding’
6
;
• Providing prisoners with drinking water whenever needed and ‘food of nutritional value
adequate for health and strength, of wholesome quality’.
7
The Essex Group pointed to the fundamental power imbalance between the prison administration
and prisoners as imprisonment is a regime enforced upon prisoners, thereby placing their human
dignity at constant risk. Certain acts or omissions by the prison administration inherently violate
2
UN General Assembly, Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, A/68/295 (9 August 2013) , available at: http://www.unodc.org/documents/justice-and-prison-
reform/SPECIAL_RAPPORTEUR_EN.pdf , at para 35 (Interim Report of the Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment). The requirement to treat persons deprived of their liberty with
dignity is set out in Article 10 of the International Covenant on Civil and Political Rights 1966 (ICCPR), Article 5 of the
African Charter on Human and Peoples’ Rights 1981, the Kampala Declaration on Prison Conditions in Africa 1996,
Principle 1 of the Basic Principles for the Treatment of Prisoners 1990; Principle 1 of the UN Body of Principles on the
Protection of All Persons under Any Form of Detention or Imprisonment 1988; Principles 12 and 87 UN Rules for the
Protection of Juveniles Deprived of their Liberty 1990; the Guideline 8 of the Guidelines for Action on Children in the
Criminal Justice System 1997 and Article 2 of the Code of Conduct for Law Enforcement Ofcials 1979.
3
Rule 17.
4
Rule 18(1).
5
Rules 19 and 20.
6
Rule 21.
7
Rule 22.
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human dignity, such as torture and other cruel, inhuman or degrading treatment or punishment
(‘other ill-treatment’) or a failure to provide adequate sanitary facilities.
Other types of conduct may violate the principle in certain circumstances depending on how it is
carried out, such as searches of cells, prisoners or the use of restraints. However, the need to treat
prisoners with human dignity extends further than these specic instances; it applies to all activities
and interactions in prisons. It therefore covers issues such as ensuring prisoners have adequate
clothing, ensuring that female prisoners do not have to ask for sanitary pads, and the way in
which prison staff speak to prisoners (for example by not using terms such as ‘inmate’, ‘felon’ or
‘convict’
8
).
The Essex Group noted the need for training for prison staff to understand how the requirement to
treat prisoners with human dignity cuts across all aspects of their work and how to incorporate it
into their duties and responsibilities on a day-to-day basis.
9
Minimising the Difference between Life in Prison and at Liberty
Rule 5(1) requires the prison administration to minimise the differences between prison life and
‘life at liberty’. The Rule provides two justications for this requirement. First, to avoid lessening
the ‘responsibility of prisoners’. This connects to the importance of ensuring released prisoners
can reintegrate into society through maintaining their ability to make decisions autonomously
and preventing institutionalisation and dependence on prison life and routine. Second, Rule
5(1) connects to Rule 1 in referencing the requirement to respect prisoners’ human dignity. The
requirement to respect human dignity is the rst positive instruction to the prison administration in
the Rules.
Imprisonment does not provide the prison administration with free rein to deny all rights.
Imprisonment itself is the punishment; prisoners are not imprisoned for further forms of
punishment. Therefore, any restrictions or limitations that differ from life in the outside world must
be necessary to advance a legitimate aim and be necessary and proportionate. For example, the
European Court of Human Rights has found that many fundamental rights cannot be subject to
blanket restrictions because of ‘[t]he mere fact of imprisonment … [such as] the right of a prisoner
to correspond … to have effective access to a lawyer or to court … to have access to his family …
to practise his religion … to exercise freedom of expression … or to marry’.
10
Similarly, the Basic
Principles for the Treatment of Prisoners provide that:
Except for those limitations that are demonstrably necessitated by the fact of incarceration,
all prisoners/ detainees shall retain the human rights and fundamental freedoms set
out in the Universal Declaration of Human Rights, and, where the State concerned is
a party, the International Covenant on Economic, Social and Cultural Rights, and the
International Covenant on Civil and Political Rights and the Optional Protocol thereto, as
well as such other rights as are set out in other United Nations covenants.
11
8
Washington Times, Justice Department program to no longer use ‘disparaging’ terms ‘felons’ and ‘convicts’ (4 May
2016) available at: http://www.washingtontimes.com/news/2016/may/4/justice-dept-no-longer-use-terms-felon-convict/
9
Council of Europe: European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punish-
ment, CPT standards, 2015 (CPT/Inf/E (2002) 1 - Rev. 2015) Staff – prisoner relations. at para. 26, noting that: ‘[t]
he cornerstone of a humane prison system will always be properly recruited and trained prison staff who know how to
adopt the appropriate attitude in their relations with prisoners and see their work more as a vocation than as a mere
job’. Available at: http://www.cpt.coe.int/en/documents/eng-standards.pdf (CPT Standards)
10
See Hirst v. UK (No 2), Application No. 74025/01 (ECHR, 6 October 2005) at para 69.
11
Principle 5.
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Rule 5(1) provides a way for prison ofcials to test whether any form of treatment that differs
from ‘life at liberty’ is legitimate and necessary, and to assess its impact on a prisoner’s self-
determination and human dignity. It directs prison ofcials to think positively about ways to
minimise the difference between prison life and life at liberty. The Essex Group noted that those
in the community/outside world and those in prisons have a fundamental right to human dignity.
This fundamental right underpins all other human rights such as the right to an adequate standard
of living, adequate healthcare, a right to education, a right to family life and a right to work. They
noted that where the standards of living and opportunities in the community are low, this does
not remove the prison administration’s obligation to ensure that prisoners are able to exercise
these rights.
12
Rather, it must ensure that specic opportunities are available for work, family life,
education and communication with the outside world.
13
This aligns with the European Prison Rules
that provide that ‘life in prison shall approximate as far as possible the positive aspects of life in the
community’.
14
It also connects to the objective of rehabilitation in preparing prisoners to undertake
socially responsible roles on release.
Safety and Security
Rule 1 provides that the ‘safety and security of prisoners, staff, service providers and visitors shall
be ensured at all times’. Personal safety is the bedrock of dignity. The Essex Group recalled that
states have to ensure that prisoners, staff, service providers and visitors are safe and secure.
They noted that safety and security should not be interpreted solely as protection from violence
but also from threats, exploitation, abuse, theft, humiliation or any other form of victimization
(whether by staff or a fellow prisoner).
15
As noted in the second paper of the Essex Group
16
, it
also requires safety and security of infrastructure from ‘the condition of the prison estate (e.g.
dilapidated buildings), the risks arising from prisoners’ belongings, re hazards (e.g. smoking
or use of unauthorised electrical equipment such as cooking stoves and non-re resistant/proof
mattresses) as well as procedures and evacuation policies in case of re
17
or natural disaster’
18
.
These obligations are addressed in greater detail in Chapter 6.
The Essex Group noted the relationship between the safety and security clause in Rule 1 and
the requirement to ensure the human dignity of prisoners. In this respect, they suggested that
when prisons are being refurbished or new prisons built, the human dignity, safety and security of
prisoners should be taken into account
19
including ensuring that they comply with the requirements
of the Nelson Mandela Rules on accommodation.
20
For example, what might have been acceptable
at the time older prisons (such as in the 19
th
Century) were built may not be appropriate today.
12
UN Service for Project Services, Technical Guidance for Prison Planning: Technical and Operational Considerations
Based on the Nelson Mandela Rules (2016) at 153 (making this point in relation to the right to health). (UNOPS, Tech-
nical Guidance for Prison Planning)
13
UNOPS, Technical Guidance for Prison Planning, chapter two on prison facilities.
14
Council of Europe: Committee of Ministers, Recommendation Rec(2006)2 of the Committee of Ministers to Member
States on the European Prison Rules, 11 January 2006, available at: http://www.refworld.org/docid/43f3134810.html,
Rule 5 (European Prison Rules)
15
This is discussed in greater detail in the Second Report of the Essex Group of Experts, at paras 5 – 27.
16
Second Report of the Essex Group of Experts, at para. 24.
17
See the Report of the Inter-American Commission on Human Rights on the Situation of Persons Deprived of their
Liberty in Honduras, OAS (18 March 2013), OEA/Ser.L/V/II.147, available at: http://www.oas.org/en/iachr/pdl/docs/pdf/
honduras-ppl-2013eng.pdf
18
For example, a report published by the American Civil Liberties Union documents the lack of emergency planning
at the Orleans Parish Prison which during Hurricane Katrina resulted in thousands of individuals being trapped. See
American Civil Liberties Union, Abandoned and abused (August 2006) available at: www.aclu.org/prisoners-rights/
abandoned-and-abused .
19
UNOPS, Technical Guidance for Prison Planning, at 16, 30, 32, 44 – 45, 73, 86, 229, 230, 235
20
See, for example, Rules 12 – 17.
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Prohibition of Torture and Other Ill-Treatment
The revised Standard Minimum Rules on the Treatment of Prisoners explicitly incorporate the
prohibition of torture and other cruel, inhuman or degrading treatment or punishment (‘other
ill-treatment’) into Rule 1. This is an absolute prohibition under international law, permitting no
exceptions.
21
It is dened in the UN Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment as:
any act by which severe pain or suffering, whether physical or mental, is intentionally
inicted on a person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when such pain or suffering is inicted
by or at the instigation of or with the consent or acquiescence of a public ofcial or other
person acting in an ofcial capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions.
The Essex Group noted that the prohibition of other ill-treatment should not be understood as
an abstract concept or one that does not carry the gravitas of the label of torture. It is a rmly
established principle in international law with many illustrative cases decided by the regional
human rights courts and commissions and UN treaty bodies.
22
As the UN Special Rapporteur on
Torture has pointed out, the prohibition of other ill-treatment covers:
conditions of detention [that] can amount to inhuman and degrading treatment.
Overcrowding, lack of ventilation, poor sanitary conditions, prolonged isolation, the
holding of suspects incommunicado, frequent transfers from one prison to another, the
non-separation of different categories of prisoners, the holding of persons with disabilities
in environments that include areas inaccessible to them and the holding of persons
without means of communication could constitute or lead to cruel, inhuman or degrading
treatment or torture.
23
The type of conduct or omission that falls within the prohibition of other ill-treatment continues to
develop with society’s standards. Therefore, what might have been seen as acceptable treatment
or conditions for prisoners 20 years ago will not necessarily be seen as acceptable today.
24
As made clear by the UN Special Rapporteur on Torture, the prohibition of other ill-treatment does
not only cover intentional physical and/or mental ill-treatment that does not reach the level of
torture but also covers poor conditions of imprisonment, irrespective of whether these are imposed
intentionally, purposefully or for a reason based on discrimination.
25
It provides a framework not just
21
Article 7 of the ICCPR; Article 2 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment 1984; Article 5 of the African Charter on Human and People’s Rights 1981; Article 7 of the Amer-
ican Convention on Human Rights 1969; Article 3 of the European Convention on Human Rights 1950 (ECHR).
22
For examples, see Inter-American Court of Human Rights, Case of Cantoral Benavides v Peru (18 August 2000);
Ireland v. the United Kingdom, Application no. 5310/71 (ECHR, 18 January 1978); UN Human Rights Committee,
Vuolanne v. Finland, Communication No. 265/1987 (2 May 1989).
23
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment. at para 45.
24
Selmouni v France, Application No. 25803/94 (ECHR, 28 July 1998) para. 100.
25
For example, see V. v. U.K Application no. 24888/94 (ECHR,16 December 1999), para. 71
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for what prison staff must do and refrain from doing but also what prisoners do to themselves and
to each other and to the treatment of visitors.
26
A violation of the prohibition of other ill-treatment cannot be justied on grounds of lack of
resources which is critical on issues such as overcrowding and inadequate food, healthcare and
accommodation. For example, citing the Inter-American Court on Human Rights, the UN Special
Rapporteur on Torture has noted that:
Treating all persons deprived of their liberty with humanity and with respect for their
dignity is a fundamental and universally applicable rule, the application of which, at a
minimum, cannot be dependent on the material resources available in the State party
to the International Covenant on Civil and Political Rights (para. 4). In this regard, the
Inter-American Court of Human Rights has consistently afrmed that States cannot
invoke economic hardship to justify imprisonment conditions that do not comply with
the minimum international standards and respect the inherent dignity of the human
being.
27
While recognizing that penitentiary systems are almost universally severely underfunded
and suffer from decades of accumulated problems, the Special Rapporteur recalls
that a lack of nancial resources cannot be an excuse for not refurbishing detention
facilities, purchasing basic supplies and providing food and medical treatment, among
other things.
28
® à See Chapter 4, Healthcare – Rule 34
Principle of Non-Discrimination
The Essex Group noted that the non-discrimination clause in Rule 2 provides specic illustration
of forms of discrimination but also includes the clause ‘or any other status’. The inclusion of the
clause ‘any other status’ is in line with a number of other international instruments. In common with
these instruments, the list provided is illustrative and not exhaustive.
The Essex Group noted that while the list of illustrative grounds for discrimination was not
changed from the original text of the SMR during the revision process, the word ‘any’ was added.
This underscores states’ intention to clarify that the term ‘discrimination’ should be understood as
reecting and recognising the current meaning of the term in international law and standards, as it
continues to expand.
For example, existing international human rights standards and norms prohibit discrimination on
one or more grounds such as race, colour, sex, language, religion or conviction, political or other
opinion or belief, membership of a particular social group, status, activities, descent, national,
ethnic, indigenous or social origin, nationality, age, economic position, property, disability, marital
26
For examples of inter-prisoner violence cases, see Pantea v Romania Application No. 33343/96 (ECHR, 3 June 2003)
and DF v Latvia Application no. 11160/07 (ECHR, 29 October 2013); For examples on self-harm, see Keenan v. the
United Kingdom Application no. 27229/95(ECHR, 3 March, 2001) and Renolde v France Application no. 5608/05
(ECHR, 16 October 2008); and on treatment of visitors, see Wainwright V. The United Kingdom
Application no.
12350/04 (ECHR, 26 September 2006)
27
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
at para. 35.
28
Interim Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
at para. 46.
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status, sexual orientation, gender identity or birth.
29
This list is also not exhaustive but illustrates
the ongoing interpretation of the ‘any other status’ provision within international human rights
standards and norms.
The Essex Group noted, therefore, that ‘or any other status’ must be interpreted as widely as
possible in line with current international law and standards. As with human dignity, the Rule on
non-discrimination is not a stand-alone provision but one that must be read together with all of the
Nelson Mandela Rules.
Conduct in Case of Death of a Prisoner
Rule 72 requires that the prison administration treat ‘the body of a deceased prisoner with respect
and dignity’. The underlying rationale for this Rule is that the human dignity of the prisoner must be
respected following his or her death. Implicit in Rule 72 and the Rules general is also the duty to
treat the family of a deceased prisoner with respect.
The Essex Group noted that prison ofcials should be trained in how to deal with a body in the
same way in which a body is dealt with in an investigation outside of the prison context and that
these practices should be followed within the prison.
30
The Rule species that the body should be returned ‘as soon as reasonably possible, at the latest
upon completion of the investigation’. The Essex Group noted that this provides an upper time limit
for the return of the body as there is no justication for keeping a body beyond the period of the
investigation. However, in many situations, the experts noted that it may be possible to organise
the investigation so that the body is dealt with rst. This would enable it to be returned much
earlier. In all cases, the Essex Group noted that the prison should respect the relevant religious
and cultural norms regarding the proper treatment of the body of a deceased person.
29
The illustrative but non-exhaustive lists contained in international norms and standards include, Article 1(1) International
Convention on the Elimination of all forms of Racial Discrimination 1965 ‘…based on race, colour, descent, or national
or ethnic origin…’; Article 2(1) ICCPR ‘…such as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status.’; Article 26 ICCPR ‘…on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.’; Article 2(2) International
Convention on Economic, Social, and Cultural Rights 1966 ‘…as to race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.’; Article 1(1) Convention for the Elimination of all
forms of Discrimination Against Women 1979 ‘…on the basis of sex …’; Article 2(1)-2(2) Convention on the Rights of
the Child 1989 ‘…without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s
race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth
or other status.’’…to ensure that the child is protected against all forms of discrimination or punishment on the basis of
the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.’; Article
1(1) International Convention on the Protection of the Rights of All Migrant Workers and Their Families 1990 ‘…without
distinction of any kind such as sex, race, colour, language, religion or conviction, political or other opinion, national,
ethnic or social origin, nationality, age, economic position, property, marital status, birth or other status.’; Article 13(7)
International Convention for the Protection of All Persons from Enforced Disappearance 2006 [concerning the prohibi-
tion against extradition] ‘…for the purpose of prosecuting or punishing a person on account of that person’s sex, race,
religion, nationality, ethnic origin, political opinions or membership of a particular social group, or that compliance with
the request would cause harm to that person for any one of these reasons.’; International Convention on the Rights of
Persons with Disabilities, Preambular paragraph (p) ‘Concerned about the difcult conditions faced by persons with
disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language,
religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status’; on
sexual orientation and gender identity as a form of discrimination see, United Nations Human Rights Council, Resolution
regarding human rights, sexual orientation and gender identity, A/HRC/17/L.9/Rev.1, (15 June 2011) and Declaration on
human rights, sexual orientation and gender identity, United Nations General Assembly A/63/635 (22 December 2008).
30
UNOPS, Technical Guidance for Prison Planning, at 157 (providing that, ‘[p]risons may require a facility where pris-
oners who have died can be prepared for burial or cremation, or where they can be stored while awaiting family
arrangements’).
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Searches of Prisoners, Cells and Visitors
Rule 1 on the requirement to respect human dignity frames how the specic rules on searches
of prisoners, cells and visitors in Rules 50 – 52 and 60 should be interpreted and applied. These
Rules cover whether searches should be carried out in the rst place and when they are, how they
are conducted.
Types of Searches
Searches cover all personal searches, including pat down and frisk searches, as well as strip
and invasive searches. A strip search refers to the removal or rearrangement of some or all of
the clothing of a person so as to permit a visual inspection of a person’s private areas. Invasive
body searches involve a physical inspection of the detainee’s genital or anal regions. Other types
of searches include searches of the property and rooms of prisoners. Visitors to prison are also
frequently searched.
Searches as a Last Resort and the Use of Alternatives
The Essex Group recalled that international standards and norms set out clear requirements on
when searches are legal, proportionate and necessary
31
. The Essex Group recalled the second
Essex paper that emphasized the requirement for the prison administration to ensure that
alternatives to searches (and other invasive measures) are in place so that searches are a means
of last resort.
32
The Essex Group also emphasised the particular position of vulnerability in which women are
placed with regard to body searches, especially of an invasive nature. This vulnerability arises
because of the way in which body searches are conducted (for example, requiring women to
remove items of clothing and lifting their breasts) as well as reasons such as prior abuse. These
risks again underscore the importance of prioritizing alternatives to searches and ensuring that
searches are used only as a last resort as well as the importance of complying with Rule 19 of the
Bangkok Rules that require searches of women to be conducted by women staff.
A fact-sheet by the Association on the Prevention of Torture and Penal Reform International sets
out a list of concrete questions for prison ofcials to ask themselves when assessing if a search
is necessary in the rst place and if they are to be carried out, how and by whom in line with the
Nelson Mandela Rules and international standards and norms.
33
General Principles for the Conduct of Searches
Rule 50 of the Nelson Mandela Rules provides that searches must be respectful of the ‘inherent
dignity and privacy of the individual being’. The Essex Group emphasized that searches must be
conducted in line with the prohibition of torture and other ill-treatment and the right to health.
31
Rules 19-21, UN General Assembly, United Nations Rules for the Treatment of Women Prisoners and Non-Custodial
Measures for Women Offenders (the Bangkok Rules, 6 October 2010), A/C.3/65/L.5, available at: http://www.un.org/
en/ecosoc/docs/2010/res%202010-16.pdf; Principle XXI, Inter-American Commission on Human Rights (IACHR),
Resolution 1/08, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas (13
March 2008) No. 1/08, available at: http://www.cidh.org/basicos/english/basic21.a.principles%20and%20best%20prac-
tices%20pdl.htm ; European Prison Rules, Part IV para. 54
32
Second Report of the Essex Group of Experts, at paras. 9 and 72.
33
Association on the Prevention of Torture and Penal Reform International, Body Searches: Addressing risk factors
to prevent torture and ill-treatment (Second edition, 2015), available at: https://www.penalreform.org/wp-content/
uploads/2016/01/factsheet-4-searches-2nd-v5.pdf
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The Essex Group noted that searches should be conducted in a designated search room in
a prison facility where a prisoner can be searched with dignity away from the sight of other
prisoners.
34
They pointed out that international standards and norms require that strip-searches
must never be conducted within a group and that prisoners must never be completely naked.
35
Similarly, the Essex Group noted that cell searches must respect prisoners’ property, especially
that with legal, sentimental, religious or similar value.
They noted that the laws and regulations on searches should be clearly specied and that a
system and procedures for searches should be in place.
36
Rule 60 of the Nelson Mandela Rules provides that ‘search procedures for visitors must not be
degrading and be governed by principles at least as protective’ as for prisoners.
Where searches are considered absolutely necessary, the Essex Group recalled that the least
intrusive means should be used and that searches should be intelligence-led rather than based
on proling or presumptions.
37
They also noted that it is particularly important for prison ofcials to
be clear that the easiest or most convenient way in which to carry out a search does not establish
necessity.
Avoidance of Normalisation or Conditioning to Operating in Ways that Offend
Human Dignity
The Essex Group raised the importance of maintaining sensitivity and awareness of the concepts
of proportionality and necessity in practice. They noted that there is a risk that prison ofcials
become normalised to certain ways of operating. This could mean that they carry out searches
more frequently or in circumstances that are not proportionate or necessary but that over time
become seen as acceptable or the ‘way things are done’ internally.
The Essex Group emphasized the importance of regularly re-examining the rationale and
justication for searches to ensure that they are not conducted on a routine basis, but rather their
necessity and proportionality assessed on a case-to-case basis. For example, repeated body
searches during periods when prisoners are not in touch with others outside their cell are not
necessary or proportionate. The frequency of cell searches should also be examined to ensure that
they are necessary and proportionate rather than simply the way the prison has always worked.
Recording of Searches
The Essex Group pointed to the rationale underlying the recording of the use of searches within
Rule 51. They noted that Rule 51 is clear on the dual purpose of recording the use of searches
as rst, for accountability and second, to prevent the elimination of the use of searches to harass,
humiliate or intimidate prisoners as set out in Rule 51.
38
34
UNOPS, Technical Guidance for Prison Planning, at 115.
35
European Committee for the Prevention of Torture (CPT), Report to the Government of Bosnia and Herzegovina on the
Visit to Bosnia and Herzegovina carried out by the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment from 29 September to 9 October 2015, CPT/Inf (2016) 17 (5 July 2016) at para 79
(CPT Report to the Government of Bosnia and Herzegovina); CPT, Report to the Czech Government on the Visit to the
Czech Republic carried out by the European Committee for the Prevention of Torture from 1 to 10 April 2014, CPT/Inf
(2015) 18 (31 March 2015) at para. 86.
36
See, Rule 54(1) of the European Prison Rules, Rule XXI of the Principles and Best Practices on the Protection of
Persons Deprived of Liberty in the Americas.
37
CPT Report to the Government of Bosnia and Herzegovina, at para 79.
38
See also, Rule 54.4 of the European Prison Rules.
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The Essex Group recommended that prison staff should be trained in methods to identify
whether there are grounds for searching in the rst place, whether searches are necessary and
proportionate and which alternatives can be used.
Rule 51 requires the prison administration to keep records of the search including the identity of
the ofcials who conducted the search and the reasons and results of the search. The experts
particularly emphasized the importance of recording why intrusive searches are necessary given
the harm they can have on prisoners as set out below. The experts also noted that evidence of the
specic alternatives considered should be included in the documentation and records of the use
of searches. The experts discussed that in order to ensure accountability, as explicitly captured in
Rule 51, records need to include whether and which alternatives to searching had been considered
and why they were not deemed suitable in the circumstances.
Intrusive Body Searches
Rule 52(1) species that intrusive body searches may only be used if absolutely necessary. This is
because intrusive searches can be particularly harmful and have an adverse impact on prisoners’
human dignity, particularly for women prisoners, and can amount to a violation of the prohibition of
torture and other ill-treatment, depending on how they are carried out. It is for this reason, the Inter-
American Commission on Human Rights
39
and some national jurisdictions have prohibited intrusive
body searches altogether.
40
The Essex Group suggested that ‘absolutely necessary’ should be understood in the same way
in which it is applied to the use of instruments of restraint, meaning situations in which there is an
immediate risk to the prisoner or other persons
41
.
The Essex Group pointed out that intimate, strip and cavity searches may be conducted using
force, with an even heightened potential of misuse by prison ofcials seeking to assert power and
control over new prisoners. As noted above, in such cases, it may also violate the prohibition of
torture and other ill-treatment.
42
In line with international standards and norms, Rule 52(1) requires that alternatives should always
be pursued instead of intrusive body searches.
43
Where available, technology should be used such
as electronic detection scanning methods
44
although certain forms of technology will not pick up an
organic package, for example.
39
Principle XXI, Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas: “Intru-
sive vaginal or anal searches shall be prohibited by law.”
40
See Article 57 of the 2009 French Prison Law. In Brazil, ve states have also prohibited invasive searches: Paraíba,
Goiás, Rio Grande do Sul, Rio de Janeiro and Minas Gerais.
41
See Rule 48 of the Nelson Mandela Rules.
42
Iwanczuk v Poland, Application No. 25196/94 (ECHR,15 November 2001); EL Shennawy v France Application no.
51246/08 (ECHR, 20 January 2011) (during two weeks, the applicant was subjected to 4 to 8 searches a day, when
going and leaving the tribunal; during the rst week, searches were video recorded and carried out by hooded law
enforcement personnel; these searches, under these conditions and frequency, were not justied by pressing security
need); Valasina v Lithuania, Application No. 44558/98 (ECHR, 24 July 2001)(a male prisoner was obliged to strip
naked in the presence of a woman prison ofcer, and then his sexual organs and his food were touched with bare
hands; this constituted a degrading treatment); Frerot v. France, Application No. 70204/01 (ECHR, 12 June 2007).
43
See, for example, Rule 20 of the Bangkok Rules and Principle XXI of the Principles and Best Practices on the Protec-
tion of Persons Deprived of Liberty in the Americas.
44
UN Committee against Torture, Observations of the Committee on the revision of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (SMR), (16 December 2013) UN-Doc. CAT/C/51/4, para.31. See also,
Principle XXI of the Inter-American Principles And Best Practices On The Protection Of Persons Deprived Of Liberty.
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The Essex Group underscored the critical importance that alternatives are also in line with the
respect for a prisoner’s human dignity. For example, the use of laxatives is viewed as bad practice
and not respectful of human dignity.
45
Body Cavity Searches by Healthcare Professionals
Rule 52(2) species that body cavity searches ‘shall only be conducted by qualied health-care
professionals other than those primarily responsible for the care of the prisoner’. This is in line with
medical ethics and the Bangkok Rules.
46
The second clause in Rule 52(2), however, recognises that in certain situations this is not possible.
Where it is not possible, the Rule provides that the search should not be conducted by the primary
health-care provider for the prisoner but by ‘staff appropriately trained by a medical professional
in standards of hygiene, health and safety’.
47
For example, the European Committee for the
Prevention of Torture has found that, ‘such examinations [body cavity searches] should only be
carried out by a medical practitioner, who is not the treating doctor of the prisoner concerned,
and under conditions which respect physical safety and human dignity’.
48
The World Medical
Association has asserted that:
These searches are performed for security reasons and not for medical reasons.
Nevertheless, they should not be done by anyone other than a person with appropriate
medical training. This non-medical act may be performed by a physician to protect the
prisoner from the harm that might result from a search by a non-medically trained examiner.
In such a case the physician should explain this to the prisoner. The physician should
furthermore explain to the prisoner that the usual conditions of medical condentiality
do not apply during this imposed procedure and that the results of the search will be
revealed to the authorities.
Finally, the World Medical Association urges all governments and responsible public
ofcials to provide body searches that are performed by a qualied physician whenever
warranted by the individual’s physical condition.
49
Searches of Visitors
Rule 60(1) of the Nelson Mandela Rules provides that visitors must consent to being searched
in order to be admitted to the prison and where they do not ‘the prison administration may refuse
access’. The experts recalled that during the negotiations it was recognized that searches of
45
See Report to the Government of Greece on the visit to Greece carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 17 to 29 September 2009,
CPT/Inf (2010) 33, available at: http://www.cpt.coe.int/documents/grc/2010-33-inf-eng.pdf, para. 93; Report to the
Government of Greece on the visit to Greece carried out by the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) from 19 to 27 January 2011, CPT/Inf (2012) 1, available at:
http://www.cpt.coe.int/documents/grc/2012-01-inf-eng.pdf, para. 51.
46
Rule 19 of the Bangkok Rules; World Medical Association Statement on Body Searches of Prisoners, Adopted by the
45th World Medical Assembly, Budapest, Hungary, October 1993 and editorially revised at the 170th Council Session,
Divonne-les-Bains, France (May 2005), available at: http://www.wma.net/en/30publications/10policies/b5/ (WMA,
Statement on Body Searches of Prisoners)
47
See Penal Reform International and Thailand Institute of Justice, Guidance Document on the United Nations Rules on
the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (The Bangkok Rules) (2013) at
62 – 63 (for a detailed discussion of the standards supporting this point).
48
CPT, Report to the Estonian Government on the Visit to Estonia carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 30 May to 6 June 2012, CPT/Inf
(2014) 1 (21 January 2014) at para. 83.
49
WMA, Statement on Body Searches of Prisoners, 212
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prisoners and searches of visitors are different as visitors are not in prison following a conviction
for a criminal offence. Therefore, searches can never be enforced upon visitors. However, during
the negotiations, states pointed out that the prison administration also needs to ensure safety and
security in prisons including preventing contraband being brought into the prison. Yet, even on this
rationale, a search may not be required or be necessary or proportionate if the visit is not open
thus removing the risk of any contraband being transferred.
The Essex Group noted that consent must be interpreted as informed consent and the procedures
used to conduct searches announced and explained before entering the facility.
They also pointed out that when visitors are aware that they may be searched, it gives them the
opportunity to explain to the prisoner that the risk of the search meant that they had to dispose of
any contraband which they are sometimes put under pressure to bring in.
The Essex Group emphasised that there should not be a blanket method of carrying out body
searches. Rather, it should be intelligence-led, that is, used only when there is evidence that it
is required or evidence that a body search is necessary and proportionate to the identied risks.
Further, the experts suggested that search procedures for visitors should ‘recognise that visitors
are not themselves prisoners and that the obligation to protect the security of the prison has to be
balanced against the right of visitors to their personal privacy’.
50
The Essex Group also pointed out that children should not be subject to body searches as it
will never be in their best interests. However, if there is a suspicion that a child may have been
pressured into bringing contraband to the prison, alternatives may be possible, such as a non-
contact visit. This would still mean that the child could visit his or her family member.
Prisoners with Disabilities
Two key rules deal with the rights of prisoners with disabilities. These are Rule 5(2) and Rule 109.
Rule 5(2) requires prison administrations to make all ‘reasonable accommodation and adjustments
to ensure that prisoners with physical, mental or other disabilities have full and effective access
to prison life on an equitable basis’. This is because a disability is as much a reection of the
environment, structure and circumstances in which people live that disadvantage them as an
individual trait. Therefore, the idea underpinning reasonable accommodation and adjustment is that
the environment and structure should accommodate the trait. If the structure inherently imposes
a detrimental experience on any disability, the disadvantage for the person amounts to arbitrary
deprivation or punishment. For example, if showers are equipped with a sill that prevents access
to wheelchair users, the disability is disadvantaged by a structure, which prison ofcials will be
required to correct.
Rule 5(2) should be read together with Rule 4(2) which requires that all programmes, services and
assistance are ‘delivered in line with the individual treatment needs of prisoners’ and Rule 109 on
the detention and treatment of prisoners with mental health disabilities and/or health conditions.
The rst step in making reasonable accommodation or adjustments is to identify what the
individual needs of the prisoner are. The Essex Group underscored that it is vital that the prisoner
has input into what his or her needs are.
51
The prison is then required to make the reasonable
50
Coyle A, A Human Rights Approach to Prison Management (second edition, 2009), available at: http://www.prison-
studies.org/sites/default/les/resources/downloads/handbook_2nd_ed_eng_8.pdf, at p.64 ; see Rule 54.9 of the Euro-
pean Prison Rules.
51
Article 3(a) of the UN Convention on the Rights of Persons with Disabilities.
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accommodation or adjustments to meet the needs of the prisoner. Article 2 of the UN Convention
on the Rights of Persons with Disabilities denes ‘reasonable accommodation’ as the ‘necessary
and appropriate modication and adjustments not imposing a disproportionate or undue burden,
where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise
on an equal basis with others of all human rights and fundamental freedoms’.
52
The Essex Group noted that in addition to specic accommodation and adjustments tailored to
individual prisoners, the prison itself and the way in which it is run can be adapted so that it is not
disadvantageous to any prisoner with learning needs or a physical, intellectual or mental disability.
Prisons have traditionally been designed and run with young, healthy men in mind despite the
fact that many statistics show high levels of prisoners with mental or intellectual disabilities or
needs.
53
This calls into question both the justications for and wisdom of incarcerating many of
these individuals in the rst place. This is addressed by Rule 109 which has three levels. It rst
recognises that certain individuals should not be held in prisons and if they are found to be, they
should be transferred out of the prison. This is an assessment for the courts. The Essex Group
noted that this Rule includes the requirement for ongoing and regular assessment as mistakes
may have been made during the initial assessment or a prisoner’s health may deteriorate while
in prison. The Essex Group also pointed out that ‘severe mental’ attaches to disabilities and
health conditions. Second, Rule 109 identies prisoners who may need to be accommodated
within ‘specialized facilities’. Third, it places an obligation on the prison administration to provide
psychiatric treatment to those ‘prisoners who are in need of such treatment’. The Essex Group
emphasised that any assessment or treatment should only be provided where the prisoner
provides his or her informed consent.
Beyond Rule 109, a general shift is needed in the majority of prisons in addition to meeting
individual prisoners’ needs. For example, written and oral instructions and signs can be produced
and communicated in a way that is accessible and understandable to all prisoners.
The Essex Group also noted that the prison administration must recognize that prison staff will not
have all of the expertise and knowledge on strategies and approaches to put in place. Community
partnerships are therefore needed so that prisons can benet from expertise within the community
and align prisons with best practice in the outside world in order to minimise differences between
life in prison and ‘at liberty’.
The Essex Group also noted the importance of cross-referencing Rule 5(2) with Rule 39(3) which
addresses the impact of ‘mental illness or developmental disability’ on conduct and the need for
the prison administration to take this into account when deciding upon disciplinary sanction. The
experts noted that disabilities should also be taken into account in any reward or privilege system
based on ‘good’ behaviour and assessment of risk reduction for release.
54
The experts pointed
out that if certain programmes or activities are only accessible to prisoners who progress in a
certain way then some prisoners with mental, intellectual or learning disabilities may be excluded,
which constitutes discrimination. They also recalled the rst paper of the Essex Group in which the
52
For direction on the application of reasonable adjustment/accommodation in prison, see The National Offender
Management Service (England and Wales) policy on reasonable adjustments, Annexes G and H.
53
Prison Reform Trust, Prison, the facts (2016) available at: http://www.prisonreformtrust.org.uk/Portals/0/Docu-
ments/Bromley%20Briengs/summer%202016%20brieng.pdf, at 9-10; Christine M. Sarteschi, Mentally Ill
Offenders Involved With the U.S. Criminal Justice System (16 July 2013, SAGE open), available at: http://sgo.
sagepub.com/content/3/3/2158244013497029; US State Department of Justice, Bureau of Justice Statis-
tics: Special Report (September, 2006), available at: http://www.bjs.gov/content/pub/pdf/mhppji.pdf. KiDeuk
Kim, Miriam Becker-Cohen, Maria Serakos, The Processing and Treatment of Mentally Ill Persons in the Crim-
inal Justice System (7 April 2015, Urban Institute), available at: http://www.urban.org/research/publication/
processing-and-treatment-mentally-ill-persons-criminal-justice-system/view/full_report
54
See rules 36-46 on discipline.
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experts emphasized the requirement of reasonable accommodation (or reasonable adjustments)
that underpin the UN Convention on the Rights of Persons with Disabilities.
55
Article 9 provides:
To enable persons with disabilities to live independently and participate fully in all aspects of
life, States Parties shall take appropriate measures to ensure to persons with disabilities,
access on an equal basis with others, to the physical environment, to transportation, to
information and communication, including information and communication technologies
and systems, and to other facilities and services open or provided to the public, both in
urban and in rural areas.
In the rst Essex paper, the experts noted that, ‘[t]he principle of reasonable accommodation is
dened in Article 2 of the CRPD as ‘necessary and appropriate modication and adjustments
not imposing a disproportionate or undue burden, where needed in a particular case, to ensure
to persons with disabilities the enjoyment or exercise on an equal basis with others of all human
rights and fundamental freedoms’. This therefore requires that the state ensures that it reasonably
accommodates a particular individual’s needs. This must be done in consultation with the
individual, as in accordance with the principle of established in Article 3(a) of the CRPD’. The
experts underscore that the principle of reasonable accommodation must also apply to sanctions
and systems of reward and privilege.
55
First Report of the Essex Group of Experts, at 35 – 36.
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Chapter 2
56
Prison management
Issues/rules covered:
• Basic principles (Rules 3, 4, 5(1))
• Allocation, classication, admission (Rules 59, 89, 93, 94, 119(1))
• Information to be provided to prisoners (Rule 54, 55)
• Prisoner le management (Rules 6-10)
• Institutional personnel: prison staff training (Rules 74-80 in general, Rule 49 for use of control
techniques, Rule 82(2) for use of force)
• Inspections (Rules 83, 84, 85)
Basic principles
Rule 4 unequivocally asserts that rehabilitation and reintegration are the key to protecting society
against crime and reducing recidivism.
It was noted that the development of rehabilitation and reintegration programmes should take into
account the many reasons for prisoners’ failure to lead a law-abiding and self-supporting life after
release. This should include consideration of less obvious or longer-term challenges such as family
break-ups, unemployment, social marginalisation and stigmatisation.
The Essex group also reected on the myriad ways in which imprisonment can hinder successful
reintegration and advised that prison administrations should make every effort to minimise these
obstacles.
The experts pointed out that the rehabilitation and reintegration programmes available to prisoners
should be as broad as possible, taking into account their many different social, economic and
cultural backgrounds.
The relevance of Rule 94 was highlighted, which captures the requirement to develop an
individualised programme (sentence plan) at the beginning of a prison sentence to ensure the
provision of activities and services which are appropriate to the individual and reective of their
criminogenic background. The experts also stressed that prisoners should have the opportunity to
input to the development of their rehabilitation and reintegration programmes.
The experts noted that the requirement to ‘offer’ opportunities to prisoners (Rule 4(2)) precludes
forced participation in any programmes. They pointed out, however, that prisoners may need
to participate in programmes to meet certain milestones (for example, prisoners may need to
complete particular programmes before applying for parole). The experts also noted Rule 95, which
calls for the establishment of a system not based on sanctions but on privileges to ‘encourage
56
This chapter was authored by Andrea Huber, Penal Reform International, with the support of Sharon Critoph.
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good conduct, develop a sense of responsibility and secure the interest and cooperation of
prisoners in their treatment’.
It is important to note that while prisoners may assume responsibility over certain aspects of
such programmes, activities or services, their role must never extend to placing one prisoner in
a position of power over another. The Essex group referred to Rule 40, which establishes clear
boundaries for self-government. (See also Chapter 6, Incident Management).
Whilst Rule 4 can be interpreted as not being applicable to pre-trial detainees, the experts
recommended that pre-trial detainees should not be excluded from programmes, activities and
services, nor should they be required to participate in them. The denial of opportunities during pre-
trial detention would greatly reduce the chances of successful reintegration upon release whether
or not the individual is eventually convicted. The experts noted that Rule 4 on non-discrimination
implies that pre-trial detainees are not at a disadvantage to sentenced prisoners.
It was discussed that the term ‘other competent authorities’ in Rule 4(2) means that ‘competent’
State authorities other than the prison administration should be involved in the provision of
programmes, activities and services. Quality programmes provided by government departments
in the community could also be offered in prison, thus reducing the burden on prison authorities.
Rule 88 also highlights the role community agencies should play in the task of social rehabilitation
of prisoners, which was understood to include civil society agencies which often provide services in
prison.
The experts noted the relevance of Rules 93-100 (Work), 104-105 (Education and Recreation) and
106-108 (Social Relations and Aftercare) in the context of rehabilitation and reintegration.
à For Rules 3 and 5, see Chapter 1, Dignity
Allocation, classication, admission
Proximity to home and family
The Essex group noted that the allocation of prisoners should take into account Rule 58 which
states that prisoners shall be allowed, under necessary supervision, to communicate with their
family and friends at regular intervals, including by receiving visits. Rule 59 states that prisoners
should be allocated, to the extent possible, close to their homes or places of social rehabilitation.
It was stressed that access to the outside world needs to be a key consideration when planning
for the building of new prisons, considering the proximity to communities, transport options,
access to the wider criminal justice system (e.g. courts), and the availability of guest houses for
overnight accommodation. Practical guidance in the design, planning and operation of correctional
facilities can be found in the UNOPS Technical Guidance for Prison Planning (UNOPS Technical
Guidance).
57
Prisoners should never be sent to facilities far from their homes as a form of punishment. The
experts noted that deliberately allocating prisoners far from their families or purposeful and
57
United Nations Ofce for Project Services (UNOPS), Technical Guidance for Prison Planning: Technical and oper-
ational considerations based on the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules), 2016 (Technical Guidance for Prison Planning, based on the Nelson Mandela Rules).
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continuous transfer of prisoners may constitute a violation of the prohibition of torture and other
ill-treatment.
58
The Bangkok Rules state that the allocation of women prisoners should take into account their
caretaking responsibilities, as well as the individual woman’s preference and the availability of
appropriate programmes and services.
59
It was also noted as good practice to consult prisoners about their initial allocation and any
subsequent transfer from one prison to another, as enshrined in the European Prison Rules.
60
The experts discussed the potential tension between the obligation to separate categories of
prisoners with keeping them close to their homes or places of social rehabilitation. This may be
a particular challenge in allocating female prisoners, minors or high security prisoners due to the
smaller number of specialist facilities, particularly in geographically large countries.
The Bangkok Rules address this by requiring exibility in allowing contact and visits with family to
compensate for this disadvantage faced by women.
61
à See Chapter 3, Contact with the outside world
Prison facilities
Prison architecture can play an important role in the success of prisoner rehabilitation and
reintegration.
62
The Essex group noted there are risks with both large prisons and prisons so small that proper
facilities cannot be provided, for example where there are no specialist staff.
The experts referred to relevant sections of the UNOPS Technical Guidance, including on
planning and designing prisons to deliver sports-based activities and the provision of educational,
vocational, spiritual and recreational activities for prisoners.
63
The experts claried that Rule 89(3), which states the maximum number of 500 prisoners per
facility, refers to closed prisons and that the maximum population of open prisons should be
smaller.
Separation
The Essex group recalled that Rule 11 requires the separation of different groups of prisoners,
including pre-trial detainees and convicted prisoners. Participants highlighted that the separation
58
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 2nd
General Report on the CPT’s activities covering the period 1 January to 31 December 1991, 1992, CPT/Inf (92) 3,
para. 57 (CPT 2nd General Report).
59
UN Rules on the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (The Bangkok
Rules), Rule 4.
60
European Prison Rules 2006, Rule 17.3
61
Rule 26 of the Bangkok Rules states that contact should be encouraged and facilitated ‘by all reasonable means’ and
that measures shall be taken to ‘counterbalance disadvantages faced by women detained in institutions far from their
homes’.
62
See, for example, Dr. Marayca López, ‘How to build for success: prison design and infrastructure as a tool for rehabil-
itation’, Penal Reform International expert blog series website, 24th July 2014, accessed 14 September 2016 at http://
www.penalreform.org/blog/build-success-prison-design-infrastructure-tool-rehabilitation/.
63
Technical Guidance for Prison Planning, based on the Nelson Mandela Rules, pp. 141-150 and 170-175.
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of women from men and of juveniles from adults makes it easier to meet the distinctive groups’
needs, and is also a key measure to prevent violence and exploitation, including sexual violence.
Separation, in different facilities or different sections of the same facility, has been recommended
by the Inter-American Commission on Human Rights, suggesting separation also for elderly
prisoners, and of civil prisoners from those convicted of criminal offences.
64
In managing the separation of different prisoner categories, authorities must respect the principle
of non-discrimination which requires that each category of prisoner receives equal access to all
available resources and services (Rule 2).
The Inter-American Commission on Human Rights underscored that:
Under no circumstances shall the separation of persons deprived of liberty based on
categories be used to justify discrimination, the use of torture, cruel, inhuman, or degrading
treatment or punishment, or the imposition of harsher or less adequate conditions on a
particular group.
65
Classication and risk assessments
Classication and risk assessments of prisoners are key tools of prison management, required to
differentiate and apply various levels of security for different prisoners. The concept is captured
in Rules 94 and 89, both unchanged by the review, and is based on an individual assessment
and treatment of each prisoner.
66
The Essex group underlined that the references to the ‘varying
degrees of security’ and ‘individualized treatment’ should be understood in the context of: the
principle of rehabilitation and reintegration (Rules 4, 87, 88, 91, 92 94); the provision for the
specic needs of individual prisoners (Rules 2(2)); and the protection of prisoners and prison staff
from violence (Rule 1).
Risk assessments help identify which prisoners present a threat to themselves or others or a
ight risk. While the nature of the offence for which the prisoner was convicted and the length
of sentence are an indicator, the Essex group noted that risk assessments should not be based
solely on the type of offence or sentence. In particular, prisoners under a death sentence or life
sentenced prisoners must not be subjected to higher security measures merely on the basis of
their sentence.
Concern was raised, in general, about the frequent practice of keeping prisoners locked in their
cells for most of the day as a matter of routine rather than based on individual security concerns.
Risk assessments should include the nature, severity and motivation of the current and previous
offences, any history of involvement in inter-prisoner violence or escape attempts, personal
history including victimisation (e.g. whether the prisoner has experienced domestic abuse or child
abuse), attitude towards the victim and towards fellow prisoners, ‘emotional maturity’ etc.
67
Risk
assessments should cover the identication of any risks of abuse or violence from/to prison staff or
64
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, principle XIX.
65
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, principle XIX.
66
Rule 94 calls for ‘a study of the personality of each prisoner’ and a programme of treatment ‘in light of the knowledge
obtained about his or her individual needs, capacities and dispositions’. Rule 89 emphasises the need for ‘individual-
ization of treatment’ and a ‘exible system of classifying prisoners in groups’ for this purpose. Rule 93 also refers to the
classication of prisoners under sentence based on individual risk and needs assessments (see also Rule 89).
67
For guidance on risk assessments see United Nations Ofce on Drugs and Crime (UNODC), Handbook on Dynamic
Security and Prison Intelligence, New York, 2015, pp. 14-15 (Handbook on Dynamic Security).
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prisoners,
68
discrimination, self-harm or suicide, and also the identication of any specic needs of
prisoners.
The experts stressed that mental health issues should not be misinterpreted as a risk factor when
determining classication levels. This is supported by Rule 41(d) of the Bangkok Rules which
states that the gender-sensitive risk assessment and classication of prisoners must: ‘Ensure that
those with mental health care needs are housed in accommodation which is not restrictive, and at
the lowest possible security level…’
Most countries allocate prisoners in low, medium and high security levels. The security level
to which prisoners are subject to should be the ‘minimum necessary to achieve their secure
custody’.
69
However, in the absence of effective classication system, prisoners are frequently over-classied
(i.e. housed in higher security facilities than necessary). The number of prisoners who present
a genuine risk of escape or a risk to themselves, other prisoners or staff is usually quite small.
70
Allocating prisoners to the minimum security level necessary has three primary benets: the
treatment of prisoners will be more humane (and in line with the principle of minimising differences
to life at liberty); staff will have greater capacity to mitigate and minimise the risk of those prisoners
who do pose an actual risk; and as higher security facilities are more expensive, there will be
nancial gains by minimising the number of prisoners allocated to high security levels.
The Essex group highlighted the potential damaging consequences of placing low security
prisoners in high security facilities/regimes and noted that certain groups are more likely than
others to suffer the adverse effects of high security classication. This included women prisoners,
for whom the UN Bangkok Rules require classication methods and sentence planning that
address the gender-specic needs and circumstances. They specify that a gender-sensitive risk
assessment shall:
‘Take into account the generally lower risk posed by women prisoners to others, as well as the
particularly harmful effects that high security measures and increased levels of isolation can
have on women prisoners.’
71
A proper risk assessment on admission and regular review to reallocate a prisoner to a lower or
higher security level forms part of this measure. In particular prisoners nearing the end of their
sentence should be placed in low security accommodation to prepare them for their return to
society.
72
While in some countries judges handing down the sentence also specify the security level for
imprisonment, the experts noted that prison authorities are better placed to determine the security
requirements. This approach also facilitates the review of security levels at regular intervals, which
can act as an incentive for prisoners.
73
However, the experts stressed the need for transparent
criteria and avenues to challenge classications, even more so in systems where the category
68
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 11th
General Report on the CPT’s activities covering the period 1 January to 31 December 2000, 3 September 2001, CPT/
Inf (2001) 16, para. 26 (CPT 11th General Report).
69
Rule 51 of the European Prison Rules also states explicitly that security measures applied to individual prisoners shall
be the minimum necessary to achieve their secure custody.
70
Handbook on Dynamic Security, p. 5.
71
UN Bangkok Rules 40 and 41.
72
See Rule 87 on the need for steps to be taken to ensure ‘a gradual return to life in society’.
73
Andrew Coyle, A Human Rights Approach to Prison Management: Handbook for Prison Staff: Second edition, Interna-
tional Centre for Prison Studies, London, 2009, p. 62 (A Human Rights Approach to Prison Management).
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‘entails legal consequences based on assessments of the person’s future behaviour’, such as
qualication for conditional release.
74
The experts noted that classication requirements need to be taken into account already at the
prison planning stage, and in the allocation of prisoners (e.g. location, physical state of the prison,
number and experience of prison staff).
Furthermore, the experts noted the relevance of Rule 12(2), which requires careful selection
regarding the occupation of shared cells, in particular dormitories, in terms of who is ‘suitable to
associate with one another in those conditions’.
Provision of information
Information about charges
Rule 119(1) requires that ‘every untried prisoner has the right to be promptly informed about the
reasons for his or her detention and about any charges against him or her’. In doing so, the Rules
incorporate an obligation deriving from Articles 9(2) and 14(3) of the International Covenant on Civil
and Political Rights (ICCPR).
Information must be provided in a language that the arrested person understands, or through
interpretation (free of charge).
75
It has to be noted that the ability to communicate on everyday
issues does not mean individuals can cope with criminal procedure law and charges.
76
For
some categories of vulnerable persons, directly informing the person arrested of the reasons for
detention is not sufcient.
77
It was also recalled that a family member or other person needs to be
notied of the fact and place of detention.
78
The participants highlighted that interpreters need to be independent from the authorities, as
required by the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.
79
Obligations on the provision of information may be met orally initially and subsequently be
conrmed in writing, provided that the information indicates both the law and the alleged general
facts on which the charge is based.
80
The UN Human Rights Committee has provided guidance on
the type of information required and how it needs to be delivered. The reasons given must include
not only the general legal basis of the arrest, but also enough factual specics to indicate the
substance of the complaint.
81
74
Such practice was documented, for example, in Subcommittee on Prevention of Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, Report on the visit of the Subcommittee on Prevention of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment to Argentina, 27 November 2013, CAT/OP/ARG/1, para. 42.
75
Principle 14 of the UN
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprison-
ment (Body of Principles).
76
See, for example, NSW Police Force, Code of Practice for CRIME (Custody, Rights, Investigation, Management and
Evidence), April 2015, p. 67 (NSW Police Force Code of Practice).
77
NSW Police Force Code of Practice, para. 28. When children are arrested, notice of the arrest and the reasons for it
should also be provided directly to their parents, guardians, or legal representatives. For certain persons with mental
health-care needs notice of the arrest and the reasons also need to be provided directly to persons they have desig-
nated or appropriate family members.
78
Body of Principles, Principle 16(1).
79
UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, Guideline 3, para 43(f).
80
UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and
to a fair trial, 23 August 2007, CCPR/C/GC/32, para. 31.
81
UN Human Rights Committee, General Comment No. 35, Article 9: Liberty and security of person, 10 April 2014,
CCPR/C/GC/R.35/Rev.3, paras. 24-5 (General Comment No. 35).
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The term ‘promptly’ in Rule 119(1) requires that information be given as soon as the person
concerned is formally charged with a criminal offence under domestic law or is publicly named as
such. Any delay of notication must be exceptional and kept to the absolute minimum necessary.
82
Given that information needs to be provided ‘immediately upon arrest’,
83
this obligation will usually
have to be met before a person is admitted to a detention facility. For example, if a person is
arrested by police and transferred to a pre-trial detention facility, he/she must have been notied
about the charges before arriving. Exceptions might arise where an interpreter has to be found or
where additional charges are brought against a person who is already detained.
The role of the prison authority should therefore be to verify whether information about charges
was provided, and to assist detainees in obtaining relevant information. To do this, they will need
to liaise with other relevant authorities. The Essex group held that the prison administration would
be informed about the charges at least in a general way by the commitment order, without which
prisoners should not be received in a prison (see Rule 7).
Requirement of valid commitment order
The Essex group noted the prison administration’s obligation to verify the existence of a valid
‘commitment order’ upon admission of a prisoner is enshrined in Rule 7.
The experts advised that such an order, at the very minimum, must include the date, time and
place of arrest, the name of the person and authority ordering the commitment and any other
relevant information (see Rule 7(b)). Commitment orders must be issued and signed by a judicial
authority or another competent agency.
The UN Subcommittee on Prevention of Torture (SPT) has noted, for example, that ‘the absence
of copies of warrants of committal makes it impossible to monitor any extensions of pre-trial
detention’.
84
Any commitment order lacking the required information should be automatically
considered invalid.
The group noted that, when a commitment order expires, prison authorities bear a responsibility
to either release the prisoner without delay, or – where the legal framework does not allow them to
do so – to contact the responsible court or authority immediately, ideally ahead of the foreseeable
expiration of the commitment order.
Information provided in detention
Rules 54 and 55 address both the content of information provided to prisoners and the manner in
which it should be imparted. The Essex group emphasised that it is in the vital interest of prison
administrations and staff for prisoners to understand the prison rules and procedures and their
rights and obligations.
The participants considered the terminology ‘authorized methods of seeking information’ in
Article 54(b), and cautioned that this should not be interpreted in a way that results in the denial
of information about prisoners’ rights. They also noted that ‘applicable prison regulations’ in Rule
82
General Comment No. 35, CCPR/C/GC/R.35/Rev.3, para 25.
83
General Comment No. 35, CCPR/C/GC/35, para 27.
84
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on
the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment to Mali, 20 March 2014, CAT/OP/MLI/1, para. 78 (SPT Report on visit to Mali).
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54(a) should be interpreted in the broadest sense and should include information on regulations
around the use of force and restraints.
While information should be provided at the earliest possible moment, the experts pointed out
that admission to prison is a highly stressful time when detainees may not be able to grasp all the
information received. Women prisoners, particularly those who have been separated from their
children, may be especially distressed at the time of their admission and should be treated with
sensitivity.
85
Moreover, in larger prisons there may be a signicant number of prisoners passing through the
admissions area each day, making it difcult to ensure information is provided to each prisoner in a
language and format he/she understands.
The experts therefore recommended that information be explained to prisoners again at a later
stage and that they should have the opportunity to ask questions and seek clarications.
à For further details on information provided on requests and complaints, see Chapter 6,
Incident management.
Methods of imparting information
The provision of information should involve a conversation rather than simply handing out
pamphlets or giving a lecture. Peers should be engaged in the induction process and peer support
may also be helpful for follow up questions. As an example of good practice, it was noted that in
some countries there are information desks staffed by prisoners with training in prison regulations
and policies.
Rule 55(1) claries that information should be available at least in the most commonly used
languages in accordance with the needs of the prison population and professional interpretation
should be made available wherever possible.
The Essex group acknowledged that professional interpretation may be difcult to provide in
some countries or for some languages. They suggested that the support of other prisoners with
relevant language skills may be helpful, yet stressed that while this may be a solution for day-to-
day routines, it does not provide a sufcient safeguard for more complex or private matters (e.g.
medical examinations and complaints). An inventory of the languages spoken by prison staff, social
workers and NGOs that might be able to help, was suggested as good practice.
Embassies may also be in a position to assist with language needs; however, where a fear of
persecution exists, contact to the diplomatic representation is impermissible. The Essex group
noted the relevance of Rule 62 in this context (foreign nationals, refugees and stateless persons),
as well as the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment (Principle 16, paragraph 2) and the Vienna Convention on Consular Relations
(article 36, paragraph 1(b)).
à For consular assistance, see Chapter 3, Contact with the outside world
Good practice could include an easy-to-understand guide with information on practicalities (e.g.
times of meals, how to sign up for vocational and educational programmes; information about peer
support and relevant contact details; visitation rights; relevant timetables etc.).
85
See UN Bangkok Rules, Rule 2.
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Prison le management
The Essex group stressed the importance of prisoner le management for both good prison
management and for the protection of the rights of prisoners. The UNODC Handbook for Prison
Leaders stresses:
‘Ensuring effective data management systems, including the basic prerequisite of maintaining
adequate les for individual prisoners, is essential for the effective management of any
prison system. (…) Where prison records are poor, there is a great risk of individual prisoners
becoming “lost” in the system and no one knows why they are being detained, for how long
and when they should be released. In many countries it has happened that “lost” prisoners
thought to have been released were “discovered” still in prison many years later. Good
prisoner data management is critical to ensuring that their human rights are respected and it is
also important in terms of the management of the prison itself.’
86
The SPT has emphasised the role of complete and reliable records as ‘one of the fundamental
safeguards against torture or ill-treatment’ and as ‘an essential condition for the effective exercise
of due process guarantees’.
87
Bearing these objectives in mind, the Essex group discussed the considerable changes to the
SMR related to prisoner le management, noting that they now exceed the detail provided in
regional standards and include:
• Standardised prisoner le management (Rule 6)
88
• Security of information (numbered and signed pages, secure audit trail, prevention of
unauthorised access or modication) (Rule 6 and 9)
• Requirement of a valid commitment order for admission (Rule 7, see above)
• Comprehensive personal data (Rule 7)
• Prisoner to have access to his/her records (Rule 9)
• Data recorded throughout the term of imprisonment (Rule 8)
• General data to be extracted on trends (Rule 10)
Security of information
The Essex group noted that a ‘secure audit trail’ implies meticulously kept records which should
include the identity of the staff member who enters, modies or deletes information in the system
as well as the date and time of any additions/revisions/deletions. The experts referred to guidance
provided on the secure storage of prisoner les by the UNODC Handbook on prisoner le
management
89
and the UNOPS Technical Guidance.
86
United Nations Ofce on Crime and Drugs (UNODC), Handbook for Prison Leaders, New York, 2010, p. 94 (Handbook
for Prison Leaders).
87
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on
the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment to Ukraine, 16 March 2016, CAT/OP/UKR/1.
88
See also, for example SPT Report on visit to Mali, CAT/OP/MLI/1, para. 75.
89
UNODC, Handbook on Prisoner File Management, New York, 2008, Chapter 6.
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The sensitivity of information (right to privacy and condentiality of personal information) is
recognised by Rule 9, which implies that access to information in the prisoner le should be on a
strictly need-to-know basis.
The participants noted cases in which prisoners’ safety was in jeopardy or prisoners were even
killed after information about their offence became known to other prisoners. They therefore
stressed that the les need to be kept in a location where they cannot be accessed by prisoners or
any unauthorised persons.
The Essex group recognised there may be a tension between implementing a dynamic security
approach and upholding condentiality of prisoners’ les. It was suggested that access to the entire
le could be limited to certain prison staff (e.g. more senior staff or wing leaders), who could share
the necessary information with their peers, including during staff meetings.
The UN Beijing Rules were mentioned as possibly providing additional guidance. Rule 21 states
that access to the records of juvenile offenders must be limited to persons ‘directly concerned with
the disposition of the case at hand or other duly authorized persons’.
Medical condentiality
The Essex group considered how the principle of medical condentiality is to be reconciled with the
need to disclose information to prison staff pertaining to a prisoner’s mental health status, bearing
in mind the requirements of Rule 5(2).
90
Especially following a disciplinary offence, it would be
counter-productive to withhold such information from prison staff and it might also be inconsistent
with Rules 39(3) and 1.
91
The experts noted that information on a prisoner’s mental health is crucial for prison staff to full
their duties (including providing safety and security), but not all medical information needs to be
shared. Rather, information can be shared by health-care personnel with prison staff on a need-
to-know basis, e.g. potential issues should be agged to staff so they can recognise a connection
between a prisoner’s behaviour and mental health problems.
Similarly, the experts held that a common-sense approach will greatly help staff to assess
behavioural patterns and will indicate behaviour that may be a result of mental health problems.
Such cases must be referred to a health-care professional. The Essex group recalled Rule 8(c)
which requires that information related to behaviour and discipline be recorded in the prisoner le.
à See also Chapter 5 for restrictions, discipline and sanctions and Chapter 4 for health-care
Comprehensive personal data
Rule 7 lists the following information to be entered in the prisoner le management system upon
admission of every prisoner:
90
Rule 5 (2) ‘Prison administrations shall make all reasonable accommodation and adjustments to ensure that prisoners
with physical, mental or other disabilities have full and effective access to prison life on an equitable basis’.
91
Rule 39 (3) ‘Before imposing disciplinary sanctions, prison administrations shall consider whether and how a prison-
er’s mental illness or developmental disability may have contributed to his or her conduct and the commission of the
offence or act underlying the disciplinary charge. Prison administrations shall not sanction any conduct of a prisoner
that is considered to be the direct result of his or her mental illness or intellectual disability’; Rule 1 ‘The safety and
security of prisoners, staff, service providers and visitors shall be ensured at all times’, which inherently includes
protection from suicide and self-harm.
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a) Precise information enabling determination of his or her unique identity, respecting his or her
self-perceived gender;
b) The reasons for his or her commitment and the responsible authority, in addition to the date,
time and place of arrest;
c) The day and hour of his or her admission and release as well as of any transfer;
d) Any visible injuries and complaints about prior ill-treatment;
e) An inventory of his or her personal property;
f) The names of his or her family members, including, where applicable, his or her children, the
children’s ages, location and custody or guardianship status;
g) Emergency contact details and information on the prisoner’s next of kin.
The Essex group pointed out that much of this information can be captured during the reception
process
92
on entry to a prison, but noted the need to update some of the information listed in the
course of the prison term.
Within its country visits, the SPT has repeatedly documented deciencies in the maintenance
of registers, noting for example if and when registers were not completed or signed regularly,
and ‘useful records, such as records of deaths, transfers to hospital or other prisons, disciplinary
punishments, visits by court ofcials’ were not available.
93
The Essex group discussed Rule 7(a), describing personal data to be recorded by prison
administration as ‘precise information enabling determination of his or her unique identity,
respecting his or her self-perceived gender’.
The experts noted that the provision was included to protect lesbian, gay, bisexual, transsexual
and/or intersex (LGBTI) prisoners, in light of Rule 2 which prohibits discrimination, including
based on ‘other status’ (i.e. gender identity and sexual orientation) and which requires that prison
administrations take individual needs into account.
The allocation of LGBTI prisoners and subsequently their placement within a facility need to be
determined with great caution in light of the documented particular vulnerability and risk of human
rights violations and abuses. LGBTI prisoners should be consulted on their allocation.
94
The SPT, in its eighth Annual Report, has noted concern that ‘the absence of appropriate means of
identication, registration and detention leads in some cases to transgender women being placed
in male-only prisons, where they are exposed to a high risk of rape, often with the complicity of
prison personnel’.
95
The SPT has also noted that ‘obtaining precise individual information as to gender identity is vital
to determining proper treatment, including hormone and other treatment associated with gender
transition. In the absence of mechanisms to obtain such information, grave health consequences
ensue’.
96
92
UNOPS’ Technical Guidance for Prison Planning, based on the Nelson Mandela Rules, offers guidance on how to
design a reception area that supports effective registration.
93
See, for example, SPT Report on visit to Mali, CAT/OP/MLI/1, para. 76.
94
See PRI and APT, LGBTI persons deprived of their liberty: a framework for preventive monitoring, 2015, London
(LGBTI persons deprived of their liberty); UN General Assembly, 56th Session, Report of the Special Rapporteur on
the question of torture and other cruel, inhuman or degrading treatment or punishment, 3 July 2001, A/56/156, para.
23.
95
UN Committee Against Torture, 54th Session, Eighth annual report of the Subcommittee on Prevention of Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 26 March 2015, CAT/ C/54/2, para. 68.
96
UN Committee Against Torture, 57th Session, Ninth annual report of the Subcommittee on Prevention of Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 22 March 2016, CAT/OP/C/57/4, para. 65.
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The recording of information on the self-perceived gender in Rule 7(a) should therefore be
considered as a way to facilitate the placement of transgender detainees in appropriate facilities
97
and to ensure the necessary protection and treatment.
The Essex group stressed that under no condition must Rule 7(a) be misinterpreted to stigmatise
LGBTI prisoners, discriminate against them or impose disadvantageous conditions on them.
It has been recommended that prison registers do ‘not mention the sexual orientation and/or
gender identity of a person in custody unless the person expressly wants this information to appear
and that this information is not used against them. Recording information per Rule 7(a) should not
mean that prisoners are automatically separated or their rights restricted. For transgender people,
information contained in the records concerning gender identity should not be based solely on the
biological sex of the persons concerned’.
98
In relation to Rule 7(c) the SPT has stressed that failure to record times of arrival and departure
makes it ‘difcult to monitor whether the legal limit on periods of pretrial detention is respected’.
99
With regard to Rule 7(f) – inclusion of the names of family members, in particular children – the
participants stressed that this requirement must be consistent with the Convention on the Rights of
the Child, which provides that the best interests of the child be the primary consideration.
100
The Essex group also referred to Rule 3 of the Bangkok Rules. This rule recommends recording
the names, ages and location of children in order to facilitate contact, but is worded to ensure that
women are never forced to disclose information about their children.
101
Parents should never be
punished for refusing to provide this information. Furthermore, Bangkok Rule 3(2) species that
all information related to the children’s identity should be kept condential. The experts highlighted
that the respective Bangkok Rules are applicable to fathers as noted in preliminary observation no.
12 of the Bangkok Rules.
The UN Rules for the Protection of Juveniles Deprived of their Liberty specify that the records of
juveniles in detention must include details of the ‘notications to parents and guardians on every
admission, transfer or release of the juvenile’.
102
Data recorded throughout the term of imprisonment
The Essex group highlighted the signicance of Rule 8, which goes beyond existing regional
standards in providing for a record in every prisoner’s le not only in terms of personal and case
information upon admission, but throughout the term of imprisonment.
97
See LGBTI persons deprived of their liberty, p. 9.
98
APT, ‘Files and records – LGBTI persons’, Detention Focus database, accessed 14 September 2016 at http://www.apt.
ch/detention-focus/en/detention_issues/27/?setvg=6.
99
SPT Report on visit to Mali, CAT/OP/MLI/1, para. 78.
100
Article 3(1) of the Convention on the Rights of the Child: ‘In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best inter-
ests of the child shall be a primary consideration’.
101
Bangkok Rule 3 states: ‘The number and personal details of the children of a woman being admitted to prison shall
be recorded at the time of admission. The records shall include, without prejudicing the rights of the mother, at least
the names of the children, their ages and, if not accompanying the mother, their location and custody or guardianship
status’.
102
UN Rules for the Protection of Juveniles Deprived of their Liberty, adopted by UN General Assembly Resolution
45/113, 14 December 1990, Rule 21 (d).
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The experts agreed that the list provided in Rule 8 should be read as an indicative rather than an
exhaustive list:
a) Information related to the judicial process, including dates of court hearings and legal
representation;
b) Initial assessment and classication reports;
c) Information related to behaviour and discipline;
d) Requests and complaints, including allegations of torture or other cruel, inhuman or
degrading treatment or punishment, unless they are of a condential nature;
e) Information on the imposition of disciplinary sanctions;
f) Information on the circumstances and causes of any injuries or death and, in the case of the
latter, the destination of the remains.
The requirement to keep records on searches, ‘in particular strip and body cavity searches and
searches of cells, as well as the reasons for the searches, the identities of those who conducted
them and any results of the searches’, is enshrined in Rule 51.
The experts claried that records should also include participation in work or educational activities
and the use of force, arms and/or restraints. Information related to behaviour and discipline could
include comments on prisoners’ rapport with others, sudden behavioural changes etc. which could
be useful in later assessments of whether behavioural difculties may be related to mental health
issues.
103
The prisoner le should include information about good behaviour and positive achievements in
line with the rehabilitative purpose of imprisonment and need for ongoing individual assessments
with regard classication, rehabilitation programmes and information relevant for conditional
release (Rule 93).
While keeping comprehensive records was perceived as an important tool of good prison
management, the experts noted the risk of creating an over-bureaucratic system in which staff
spend more time doing paperwork than interacting with prisoners, providing security or facilitating
rehabilitation programmes.
The Essex group also stressed that in order to maintain a comprehensive prisoner le, personnel
needs to be equipped with the skills to operate such a system.
104
Extraction of general data on trends
The Essex group discussed Rule 10, which states that prisoners’ les should be used to generate
data about trends in the prison population and occupancy rates.
The importance of extracting general data has been captured, for example, in the 2010 Survey of
the United Nations and other Best Practices in the Treatment of Prisoners in the Criminal Justice
System. It states that ‘Collecting data about prisoners and prisons and developing information
management systems can (…) better inform criminal policies and help to monitor compliance
103
The UK’s Assessment, Care in Custody, and Teamwork (ACCT) care planning system was given as a good practice
example. Under the ACCT any member of staff who receives information, including that from family members or
external agencies, or observes behaviour which may indicate a risk of suicide/self-harm, must open an ACCT plan.
104
See, for example, Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment to New Zealand, 28 July 2014, CAT/OP/NZL/1, para. 46, documenting that the ‘lack of skills
by personnel to effectively operate the system [Integrated Offender Management System] might affect data entry and
record keeping of prisoners’ information’.
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with international standards. Maintenance of accurate prisoner records is also crucial to prevent
overcrowding and rights violations’.
105
The experts agreed that Rule 10 should be interpreted to include reliable data on a broad range
of trends such as the numbers of deaths and serious injuries,
106
and data on the prole of prison
populations,
107
including, for example, on the changing age prole of a prison population so
appropriate facilities and programmes can be provided.
The experts stressed the importance of generating information on occupancy rates to address and/
or prevent overcrowding. The Inter-American Commission on Human Rights, for example, has
emphasised the need for a reliable system of registration to control prison overcrowding.
108
The data generated should be publicly available and easily accessible, to better inform public
policy and provide the public and media with regular factual information about matters affecting
prisoners.
Institutional personnel
Working conditions of prison staff
The Essex group recognised that working in a prison requires specic skills, but that prison
staff are often poorly paid, under-trained and experience high levels of work-related stress and
violence.
109
It was also noted that those working in isolated, rural prisons may experience particular
difculties.
The group discussed the need for decent working conditions and terms of service for prison staff.
This is also a prerequisite to attract and retain suitable people and to enable them to deliver their
duties effectively. Favourable conditions of service should include consideration of prisoner to staff
ratios. (See also Chapter 6, Incident management - Safety and security.)
The experts also discussed the need to inform the public about prisons, prison staff and the
signicance of their role in safeguarding society (Rule 74(2)), noting that prison staff are often held
in lower regard than other actors who work in the criminal justice eld.
105
Twelfth United Nations Congress on Crime Prevention and Criminal Justice, Workshop 2: Survey of United Nations
and other best practices in the treatment of prisoners in the criminal justice system: Background Paper, 28 January
2010, 6A/CONF.213/13, para. 18. See also UNODC, Handbook on Prisoner File Management, New York, 2008, which
contains practical guidance on setting up effective registration systems.
106
The UN Committee against Torture, for example, has stated that ‘States should monitor and document incidents of
violence in prisons with a view to revealing the root causes and designing appropriate prevention strategies’. (UN
Committee against Torture, Observations of the Committee against Torture on the revision of the United Nations
Standard Minimum Rules for the Treatment of Prisoners (SMR), 16 December 2013, CAT/C/51/4, para. 15 (CAT SMR
revision observations)). See also European Committee for the Prevention of Torture and Inhuman or Degrading Treat-
ment or Punishment (CPT), 3rd General Report on the CPT’s activities covering the period 1 January to 31 December
1992, 1993, CPT/Inf (93) 12, para. 62: ‘The health care service could compile periodic statistics concerning injuries
observed, for the attention of prison management, the Ministry of Justice, etc.’
107
In this context the experts recalled the value of research, and in particular Rules 67 and 68 of the UN Bangkok
Rules which call for research into the reasons why women are in prison and the impact of prison on them as well as
research on the number of children affected by imprisonment and the impact on them.
108
Inter-American Commission on Human Rights, Report on the Human Rights of Persons Deprived of Liberty in the
Americas, 31 December 2011, OEA/Ser.L/V/II Doc 64, para. 157.
109
See, for example, Penal Reform International, ‘Prison Staff: Overworked and Underpaid?’, Global Prison Trends 2015,
2016; and PRI and APT, ‘Staff working conditions: Addressing risk factors to prevent torture and ill-treatment’, Deten-
tion Monitoring Tool, second edition, 2015.
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It was noted that in some countries, prison ofcers are transferred regularly from one prison to
another, which constitutes a hardship for them and their families. At the same time, it has to be
acknowledged that transfers of prison ofcers have proven to be an effective measure to prevent
corruption.
Guidance about the planning, design and provision of facilities for prison staff can be found in the
UNOPS Technical Guidance.
110
Adequate prisoner-staff ratio
The Essex group highlighted the importance of an adequate prisoner-staff ratio for good prison
management, which has been widely recognised. The Inter-American Principles and Best
Practices provide that ‘[s]efcient and qualied personnel shall be available to ensure security,
surveillance, and custody’.
111
They require that staff ‘shall be provided with the necessary
resources and equipment so as to allow them to perform their duties in suitable conditions,
including fair and equitable remuneration, decent living conditions, and appropriate basic services’.
The Kampala Declaration on Prison Conditions in Africa also states that ‘the State should provide
sufcient material and nancial resources for staff to carry out their work properly’.
112
As has been noted by human rights bodies, ‘where staff complements are inadequate (it) can
easily result in high levels of stress in staff and their premature burnout, a situation which is likely
to exacerbate the tension inherent in any prison environment’.
113
The experts noted that adequate numbers of staff need to be present at all times to ensure safety
and security, including overnight.
Dynamic security and conict prevention
Lessons learned over the last 60 years include the acknowledgment that techniques of conict
resolution and mediation not only ensure human rights compliance, but also are more effective and
efcient in providing for the safety and security of prisoners and prison staff.
In particular, it is now ‘generally acknowledged that safety and security in prisons depend on
creating a positive climate which encourages the cooperation of prisoners’ and that ‘engaging with
prisoners and getting to know them can enable staff to anticipate and better prepare themselves
to respond effectively to any incident that may threaten the security of the prison and the safety of
staff and inmates’. This notion is usually referred to as ‘dynamic security’, describing an ‘emphasis
on the need for prison staff to establishing good relationships with prisoners’.
114
It implies proactive
and frequent interaction of prison staff with prisoners, which allows them to observe the prisoners
and gather information. Such regular interaction provides warning signs of incidents and allows
110
Technical Guidance for Prison Planning, based on the Nelson Mandela Rules, pp. 202-208.
111
Principle XX of the Inter-American Principles and Best Practices on the Protection of Persons Deprived of Liberty in
the Americas.
112
See African Commission on Human and Peoples’ Rights, Kampala Declaration on Prison Conditions in Africa,
September 1996, ‘Prison Staff’, para. 3.
113
CPT 11th General Report, [CPT/Inf (2001) 16], para. 26.
114
Handbook for Prison Leaders, p. 106.
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prison staff to anticipate and prevent problems before they even arise. It also means that should an
incident occur the prison staff know prisoners well enough to know how to respond.
115
Furthermore, a dynamic security approach has shown to in itself improve security. Constructive as
opposed to confrontational, relations between prisoners and staff ‘will serve to lower the tension
inherent in any prison environment and by the same token signicantly reduce the likelihood of
violent incidents and associated ill-treatment’.
116
‘Approachability of staff, instilling condence,
creating a sense of order and safety/security’ has been found to prevent conict.
117
Dynamic security entails the prison staff being directly involved with prisoners (‘basic grade staff’)
and requires adequate training. Interpersonal skills of staff are an important element in the effective
application of dynamic security.
118
Staff should understand the relevance of verbal and non-verbal
behaviour, and be familiar with the different groups represented in prison (including religious,
ethnic and cultural groups).
119
The SMR acknowledge the concept of dynamic security in Rule 76(c), and emphasise the role of
conict prevention and alternative dispute resolution in prisons in Rule 38(1).
It has been noted, in the context of post-conict situations, that to a certain extent the ‘introduction
of effective dynamic security elements, such as increased staff/prisoner contact and interaction,
can offset a prison’s limited static security components’.
120
Recruitment and selection of prison staff
The Essex group recommended that penitentiary systems have a recruitment policy in place
which is clear about the skills and qualities required. The policy should have proper criteria and
procedures to ensure only suitable applicants are employed. It has been stressed that, ‘[t]o obtain
personnel of the right calibre, the authorities must be prepared to invest adequate resources into
the process of recruitment and training and to offer adequate salaries’.
121
The skills described in Rule 76 should already be taken into account in the course of recruitment,
i.e. prison authorities should seek to recruit staff who have already acquired relevant skills.
The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials also
call on governments and law enforcement agencies to ‘ensure that all law enforcement ofcials
are selected by proper screening procedures, have appropriate moral, psychological and
physical qualities for the effective exercise of their functions and receive continuous and thorough
professional training’. They also call for a periodic review of the ‘continued tness to perform these
functions’.
122
115
A Human Rights Approach to Prison Management, pp. 59, 70-71. See also United Nations Department of Peace-
keeping Operations, Prison Incident Management Handbook, 2013, pp. 15 and 21 onwards (DPKO Prison Incident
Management Handbook); Handbook on Dynamic Security; and Ofce of the United Nations High Commissioner for
Human Rights, Human Rights and Prisons: A Manual on Human Rights Training for Prison Ofcials, vol. I, Geneva,
2005, p. 98 (Human Rights and Prisons).
116
CPT 2nd General Report, CPT/Inf (92) 3, para 45.
117
Handbook on Dynamic Security, p. 32.
118
Handbook on Dynamic Security, p. 32.
119
Handbook on Dynamic Security, p. 32.
120
DPKO Prison Incident Management Handbook, p. 21.
121
CAT SMR revision observations, CAT/C/51/4, para. 63.
122
UN Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials, Principle 18.
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It was emphasised that there should be no discrimination in the recruitment of staff and that
prisons should make efforts to recruit from diverse communities, to include members of different
ethnic groups and minorities. This seems particularly relevant in light of Rule 5 and, bearing in
mind possible language differences, would be necessary in prisons where a signicant number
of prisoners are members of such communities. (See also Chapter 3, Contact with the outside
world.).
The experts highlighted the importance of recruiting female staff, with particular reference to
women’s prisons in light of Rule 81(3). This provision states that women prisoners shall be
attended and supervised only by women staff members.
The Essex group referred to the UNODC Handbook for Prison Leaders which recommends that
hiring staff should be a gradual system of application, interview and testing to ensure the best
individual receives the position. It also recommends the implementation of testing for situational
judgement and personal ethics.
For countries in a post-conict situation the Handbook notes that a ‘vetting process’ may be
required to ensure a proper screening of new recruits and calls for special attention to the frequent
practice of recruiting amongst demobilised soldiers and ofcers.
123
It was noted with concern that in some countries police or military ofcers are assigned to serve as
prison ofcers and that prison staff are sometimes transferred to more difcult or remote prisons as
a form of disciplinary sanction, rather than in the course of a positive selection.
Training of prison staff
The Essex group noted that the list of training content in Rule 76 should be regarded as illustrative
rather than exhaustive.
The experts stressed the importance of strengthening social skills of prison staff, in particular
the aptitude for interpersonal communication skills,
124
and of ethical standards, which should
be enshrined in a Code of Ethics for prison staff.
125
They pointed out that training needs to be
designed to ensure prison staff have a broad understanding of their actions/roles, going beyond
the duty of guarding prisoners, but contributing to rehabilitation and reintegration – in line with the
principles of Rules 1 and 4.
The need for specialist training mentioned in Rule 76(2) should include training on working with the
groups identied in the UNODC Handbook on Prisoners with Special Needs.
126
The experts noted
good practice in some jurisdictions where specic ofcers are assigned with sentence planning and
identifying suitable rehabilitation and reintegration programmes for special groups. This ‘specialist
function’ should be facilitated by specialist training in line with Rule 76(2).
123
Handbook for Prison Leaders, pp.55, 59.
124
‘The possession of such skills will often enable a police or prison ofcer to defuse a situation which could otherwise
turn into violence, and more generally, will lead to a lowering of tension, and raising of the quality of life, in police and
prison establishments, to the benet of all concerned’ (CPT 2nd General Report, CPT/Inf (92) 3], para. 60). See also
CAT SMR revision observations, CAT/C/51/4, para. 63 (‘considerable emphasis should be placed on the acquisition of
interpersonal communication skills by prison staff’); and Handbook on Dynamic Security, p. 32.
125
See Council of Europe, Recommendation CM/Rec (2012)5 of the Committee of Ministers to member States on the
European Code of Ethics for Prison Staff, 2012.
126
UNODC, Handbook on Prisoners with special needs, 2009.
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Training must incorporate standards that give guidance on how to provide both a gender-sensitive
and age-sensitive approach,
127
as well as relating to the specic needs of other groups, including
LGBTI prisoners.
128
The experts stressed that training should not be limited to theoretical presentation of laws and
regulations, but should be practical and include scenario-based training.
Rule 75(3) underlines that training must be provided not only before entering duty, but on a
continual basis.
The experts acknowledged the benet of technology, including the availability of e-training, but
stressed the need and benet of face-to-face education, in particular for practical training content
such as the use of force and restraints. They further noted the need for dedicated training facilities,
where inductions can be provided in-house (staff may be more receptive to in-house training) or
by external agencies. The Principles and Best Practices on the Protection of Persons Deprived
of Liberty in the Americas recommend the participation and cooperation of social institutions and
private enterprises in training programmes and specialised education.
129
à See also Chapter 6, Incident management – use of force and arms.
Inspections and external monitoring
Two-fold system of inspections
The Essex group recalled that the updating of the rules on inspections (Rules 83-85) reects the
considerable lessons learned in recent decades from the regular monitoring of places of detention
and its preventive function with regard to torture and ill-treatment.
Experience with monitoring and inspection systems revealed that, while internal inspections
full an important function, monitoring is ensured much more effectively through an external,
independent body that has full access and can undertake unannounced visits.
Accordingly, the revised SMR reect the concept of a two-fold system consisting of internal
inspections on the one hand, and external inspections by a body independent of the prison
administration on the other.
The participants discussed that there is no clear differentiation between the terms ‘inspection’
and ‘monitoring’. ‘Inspection’ may be used more often amongst criminal justice actors describing
internal prison inspections, whereas the term ‘monitoring’ may be in use more in the human rights
community and referring to enquiries by an external, independent body.
127
UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) 1985; UN Guidelines for the
Prevention of Juvenile Delinquency (Riyadh Guidelines) 1990; UN Rules for the Protection of Juveniles Deprived of
their Liberty 1990; OHCHR Guidelines for Action on Children in the Criminal Justice System, Guideline 21. See also
CAT SMR revision observations, CAT/C/51/4, para. 62.
128
CAT SMR revision observations, CAT/C/51/4, para. 62; UN General Assembly, 68th Session, Torture and other cruel,
inhuman or degrading treatment or punishment: Note by the Secretary-General, 9 August 2013, A/68/295, para. 83
(Special Rapporteur on Torture report 2013); UN Human Rights Council, 29th Session, Discrimination and violence
against individuals based on their sexual orientation and gender identity: Report of the Ofce of the United Nations
High Commissioner for Human Rights, 4 May 2015, A/HRC/29/23, para. 75.
129
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, principle XX.
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The experts did not discuss at length aspects and good practice on external monitoring bodies,
given the wealth of information and guidance already available.
They recommended drawing on the wide array of standards and sources relating to monitoring,
including the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (OPCAT),
130
the European Committee for the Prevention of
Torture (CPT) Standards,
131
as well as manuals such as the OHCHR Manual on Human Rights
Training for Prison Ofcials.
132
The UNOPS Technical Guidance suggests that an ofce should be provided within a prison that
can be used by inspectors when conducting their work.
133
Objectives for internal and external inspection
The Essex group highlighted that Rule 83(2) claries the objectives for both internal and external
inspections/monitoring, as follows:
• Ensuring management in line with existing laws, regulations, policies and procedures;
• Protecting the rights of prisoners; and
• Bringing about the objectives of penal and corrections services.
The participants emphasised that compliance with laws and regulations includes regional and
international standards, and in particular the revised SMR; and that the ‘objectives of penal
services’ need to be interpreted in line with Rule 4, i.e. delivering a rehabilitative function.
The experts highlighted the requirement of ‘regularity’ of both internal inspections and external
monitoring visits in Rule 83(1). They noted that inspections must be frequent enough to enable
effective monitoring of conditions, changes and developments whilst allowing for exibility in terms
of prioritising inspections in more problematic prisons.
The Essex group underlined that the existence of inspections or the establishment of a monitoring
body should not result in the reduction of access to prison facilities for other actors, such as non-
governmental organisations who frequently deliver an important distinct function when visiting
prisons. The Inter-American Court on Human Rights has underscored that the work undertaken by
NGOs and other groups constitutes a positive and complementary input to the duty of the State as
a guarantor of the rights of persons under its custody.
134
130
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
131
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), CPT
Standards: “Substantive” sections of the CPT’s General Reports, 2015, CPT/Inf/E (2002) 1 – Rev. 2015, para. 54.
132
Human Rights and Prisons, p. 137: ‘Internal inspection is not in itself sufcient. It is therefore essential that there
should also be a form of inspection which is independent of the prison system’.
133
Technical Guidance for Prison Planning, based on the Nelson Mandela Rules, p. 225.
134
I/A Court H.R., Matter of Mery Naranjo et al. regarding Colombia. Provisional Measures. Order of the Inter-American
Court of Human Rights of July 05, 2006, Considering 6. I/A Court H.R., Matter of Monagas Judicial Connement
Center (“La Pica”) regarding Venezuela. Provisional Measures. Order of the Inter-American Court of Human Rights.
February 09, 2006, Considering 14. I/A Court H.R., Matter of Carlos Nieto et al. regarding Venezuela, Provisional
Measures. Order of the Inter-American Court of Human Rights of July 09, 2004, Considering 8. I/A Court H.R.,
Matter of Lysias Fleury regarding Haiti, Provisional Measures. Order of the Inter-American Court of Human Rights of
December 02, 2003, Considering 10.
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Authority of inspectors/monitors
The Essex group discussed the new provision on the authority of inspectors in Rule 84(1), which is
applicable to both internal inspectors as well as external monitors:
• Access all information, including on the number of prisoners, places and locations of
detention;
• Access all information on the treatment of prisoners, their records and conditions of
detention;
135
• Freely choose which prisons to visit, including unannounced visits at their own initiative;
136
• Freely choose which prisoners to interview;
• Conduct private and fully condential interviews with prisoners;
• Conduct private and fully condential interviews with prison staff; and
• Make recommendations to the prison administration and other competent authorities.
The Essex group stressed the requirement for inspectors to access ‘all places and locations of
detention’, which includes all areas of prison facilities, including maximum security wings.
137
Note was made of the prison administration’s obligation to enable and facilitate the work of
inspectors and monitors.
At the same time, the experts noted frequent problems of members of monitoring bodies when
seeking condential interviews with prisoners. While the protection of monitors from dangerous
prisoners is legitimate and required, it must not become an obstacle to the very function of
inspection and external monitoring. In particular, it must not prevent condential interviews of
monitors with prisoners in a trustful atmosphere. Such an environment is lacking, for example, if
the prisoner being interviewed is handcuffed to bars or windows during the conversation.
The participants claried that interviews referred to in Rule 84(c) require the consent of the
interviewee and that both prisoners and prison staff who speak to inspectors and monitors need to
be protected from any risk of intimidation, retaliation or other negative consequence as a result of
having been interviewed. The Essex group recommended to expand safeguards against such risks
developed under Rule 57(2) on inspectors and monitors, where applicable.
138
135
The SPT has been critical of detention authorities limiting the access of monitoring bodies for reasons of condenti-
ality (e.g. Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment for the purpose of providing advisory assistance to the national preventive mechanism of the Republic
of Malta: Report to the State Party, 1 February 2016, CAT/OP/MLT/1, para. 33 (SPT Report on visit to Malta).
136
The Special Rapporteur on Torture, for example, has stressed the criterion of unimpeded access (on a regular and an
ad hoc basis) without prior notice (Special Rapporteur on Torture report 2013, A/68/295, para. 82). See also CAT SMR
revision observations, CAT/C/51/4, para. 58.
137
Unimpeded access to all places of detention, all areas and facilities within them and all prisoners is established
good practice and proven precondition for the effectiveness of an inspection/ monitoring mechanism. See in partic-
ular Article 14 (1) of OPCAT and Principle XXIV of the Principles and Best Practices on the Protection of Persons
Deprived of Liberty in the Americas.
138
The Essex group noted as good practice Articles 15 and 21 of the Optional Protocol to the Convention against Torture,
according to which ‘No authority or ofcial shall order, apply, permit or tolerate any sanction against any person’ for
having communicated information to the monitoring body.
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It was stressed that inspectors should ‘not limit their activities to seeing prisoners who have
expressly requested to meet them, but should take the initiative of visiting the establishments’
detention areas and entering into contact with inmates’.
139
External monitoring body
The Essex group recommended that, when establishing such institutions, states should ensure a
clear distinction between internal and external inspections.
The participants emphasised that ‘independence’ requires that the body is not under the same
institutional, hierarchical or organisational structure as the prison management. They noted
that guidance can be drawn from Article 18 of the OPCAT, which species the term as implying
functional independence as well as the independence of the monitoring body’s personnel. Principle
29(1) of UN Body of Principles, regarding supervision of places of detention, refers to ‘a competent
authority distinct from the authority directly in charge of the administration of the place of detention
or imprisonment’.
The Essex group noted that adequate resources and the monitoring body’s ability to decide upon
their use constitutes a vital factor in the independence of external monitoring.
The experts discussed the requirement expressed in Rule 84(2) for external inspection teams to
be composed of ‘qualied and experienced inspectors’ and reiterated that guidance can be drawn
from the OPCAT. The Protocol requires members to have ‘proven professional experience in the
eld of the administration of justice, in particular criminal law, prison or police administration’,
and calls on states to ‘strive for a gender balance and the adequate representation of ethnic and
minority groups in the country’.
140
They pointed to the explicit mention of health-care professionals
(including forensic doctors) as members of inspection teams, which constitutes established good
practice.
141
The Essex group recommended that experience in monitoring methodology and knowledge of
international standards is considered a requirement when appointing members of an inspection
team.
The participants noted the appointment by ‘a competent authority’ in Rule 84(d) and emphasised
that in order to ensure independence such a body must not be appointed or approved by the
government. The wording of Rule 84(d) illustrates that there may be distinct competent authorities
appointing different inspectors.
The participants highlighted that the term ‘competent authority’ is used in different contexts
throughout the SMR and that any explanatory note needs to ensure consistency with other
references (see rules 34, 37, 41(1), 45 (1), 56(3), 71(1) and 85(2)).
142
Internal inspections
The Essex group considered that internal inspections should also, to the extent possible, have an
element of independence. Under no circumstances should internal inspection mechanisms replace
or be presented as external.
139
CAT SMR revision observations, CAT/C/51/4, para. 57.
140
Articles 5 and 18 (2) of the Optional Protocol to the Convention against Torture.
141
The UN Committee against Torture stressed that inspectors should be ‘trained to detect signs of torture or other
ill-treatment, including sexual violence’ (CAT SMR revision observations, CAT/C/51/4, para. 58).
142
Further guidance on inspections can be found in APT’s publications Optional Protocol to the UN Convention against
Torture: Implementation Manual and Establishment and Designation of National Preventative Mechanisms.
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The experts noted that internal or administrative inspections under Rule 83(1) should take place
according to agreed-upon standards and criteria. Prison managers must be made aware of these,
to be aware of what criteria they will be assessed against. Unannounced inspections are to be
encouraged.
The experts recommended the scope for internal inspections be claried, which may vary from
external monitoring mechanisms. For example, it was noted that monitoring bodies established
under the OPCAT are focused on a mandate to ‘prevent torture and other ill-treatment’, whereas
internal inspections may also want to include broader aspects of prison management, criminal
justice, or the prevention of corruption etc.
The participants noted that the ability to speak openly (internally) is imperative for an internal
inspection body. They discussed that to achieve the necessary authority, weight, and effectiveness
it is benecial to have a high-level public authority gure as the head of any inspection body.
Reporting and follow up
The Essex group referred to the wealth of information and guidance developed in recent years on
monitoring methodology and the follow-up of recommendations in particular by the SPT, National
Preventive Mechanisms established under OPCAT, by the Inter-American system, as well as the
European Committee for the Prevention of Torture (CPT).
Examining Rule 85(1), the Essex group emphasised that transparency of inspection and
monitoring bodies is important to ensure their credibility.
The participants highlighted the requirement of a written report for ‘every inspection’, which is
clearly stipulated in Rule 85(1) for internal and external inspections.
The Essex group considered that Rule 85(1) – ‘due consideration to making the reports of external
inspections publicly available’ – must not be understood as implying that internal inspections are
not made public. Rather, they noted clear guidance by international human rights mechanisms
that the ndings of monitoring should always be ‘made public, excluding any personal data of a
prisoner without his or her express consent’.
143
The participants discussed the common approach of monitoring bodies where a bilateral dialogue
with the inspected detention facility is held to discuss ndings and recommendations, and
subsequently reports are made public.
The experts stressed the importance of following up on the implementation of recommendations,
including through subsequent inspections to enquire whether recommendations were implemented
and whether any questions or challenges have arisen (Rule 85 (2)).
143
CAT SMR revision observations, CAT/C/51/4, para. 57. Special Rapporteur on Torture report 2013, A/68/295, para.
82, with reference to Rule 74 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty. See
the concern raised by the SPT, noting with concern that ‘whilst all reports prepared by the NPMs, including annual
reports and visit reports, are submitted to the relevant Minister, they have never been made public’. (SPT Report on
visit to Malta, CAT/OP/MLT/1, para. 35.)
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Chapter 3
144
Contact with
the outside world
Issues/rules covered:
• Visits (Rule 58)
• Legal representation (Rule 61 – general, Rules 119(2) and 120 – pre-trial)
• Access to legal documents (Rule 53)
• Diplomatic and consular assistance (Rule 62
145
)
• ransfers (Rule 7(c), 47(2a) and Rule 68, transfer of les Rule 26(2))
Introduction
The Essex group acknowledged that by denition imprisonment implies severe restrictions for
contact with the outside world which would not apply to other forms of deprivation of liberty, such
as in psychiatric facilities. Yet, human contact, especially with family and friends, is a very basic
human need. In prison, contact with the outside world is a right in itself and, in addition, acts as a
safeguard, especially against torture and other ill-treatment. It enables prisoners to pursue legal
procedures and manage other affairs including, for example, child custody.
When managing contact of prisoners with the outside world, prison administrations need to keep in
mind that certain communication is privileged and condential (legal representation) and that visits
have to be assessed as a right not only of the prisoner, but also his/her family members, especially
children.
More guidance will have to be provided regarding the permissible level of supervision of
communications in the context of pre-trial detention, as compared to convicted prisoners and
other forms of detention.
146
Furthermore, good practice should be identied on how to manage
the necessary supervision of communications without isolating prisoners who speak different
languages.
Contact with family and friends
Contact with family and friends has proven crucial for social reintegration of prisoners once
released, but is vital also to their well-being overall, as a source of emotional comfort and often
144
This chapter was authored by Andrea Huber, Penal Reform International.
145
Note that Rule 62 has not been changed in the course of the review.
146
The Essex group recalled that Rule 122 (formerly Rule 95) was adopted in 1977 to clarify that the Rules as a whole as
extending to all forms of deprivation of liberty (ECOSOC, Resolution 2076 (LXII): Extension of the Standard Minimum
Rules for the Treatment of Prisoners to persons arrested or imprisoned without charge, 13 May 1977).
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also for material support. The European Committee to Prevent Torture (CPT) has stressed the
importance of good contact with the outside world, as a means to safeguard relationships with
family and close friends,
147
alluding to the right to private and family life.
Prison administration, therefore, has a duty to encourage communication with the outside world.
The UNODC Handbook on Dynamic Security claries that ‘Prisoners’ contacts must be seen as
entitlements rather than privileges’, and that they should, therefore, not be used as either rewards
or punishments.
148
The importance of maintaining social relations between prisoners and their family members is
emphasised in Rule 106. Rule 59 underlines the importance of allocation ‘to prisons close to their
homes or their places of rehabilitation’.
A number of Rules capture the different facets of contact with family and friends, particularly in
relation to notication and information about certain events:
• Rule 7 calls on prison administration to document the names of family members (including
children), emergency contact details and prisoners’ next of kin.
• Rule 68 concerns the right of prisoners to immediately inform their family (or another
dedicated contact person) of their imprisonment and of any transfer, as well as of any serious
illness or injury.
• The prison administration is obliged to notify the next of kin or emergency contact in the
event of a prisoner’s serious illness, injury or transfer to a health institution,
149
and in the
event of death of a prisoner (Rule 69).
• Should a ‘near relative or any signicant other’ die or get seriously ill, the prison
administration is required to inform the prisoner. In such cases, prison administrations should
also consider whether circumstances allow for the prisoner to visit the sick relative or attend
the funeral, either under escort or alone (Rule 70).
• The right to issue requests and complaints, to the inspector of prisons, to the central prison
administration and to judicial or other competent authorities with reviewing or remedial power,
extends to family members,
150
pursuant to Rule 56(4). See Chapter 2, Prison management –
complaints.
• The body of a deceased prisoner should be returned to the next of kin (Rule 72).
• Communication with family and friends ‘at regular intervals’ is enshrined in Rule 58, listing
correspondence (in writing, telecommunication, electronic, digital and other means) and visits
as the means of communication.
The Essex group noted the various ways in which prisoners can maintain contact with the outside:
letters; visits; telephone calls; prison leave; books; newspapers; and the internet; but focused their
discussion on visits of family and friends.
They pointed out that means of communication, including electronic ones, need to be facilitated
with due regard to the principle of non-discrimination (see Rule 2(1)). This implies that means
147
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 2nd
General Report on the CPT’s activities covering the period 1 January to 31 December 1991, 1992, CPT/Inf (92) 3,
para. 51 (CPT 2nd General Report).
148
United Nations Ofce on Drugs and Crime (UNODC), Handbook on Dynamic Security and Prison Intelligence, New
York, 2015, p. 22 (Handbook on Dynamic Security).
149
Note the formulation ‘individuals designated by a prisoner to receive his/ her health information’ in Rule 69.
150
As well as legal advisers and ‘any other person who has knowledge of the case’ – see Rule 56(4).
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of communication are not only available to those prisoners who can afford to pay for them. The
Essex Group noted other examples of discrimination, such as the practice documented by the UN
Subcommittee on Prevention of Torture (SPT), where ‘in the case of female prisoners, long visits
by a civil partner were prohibited and prices for use of facilities for intimate visits were prohibitive
and higher than in the male colonies’.
151
Indigent prisoners should be provided with appropriate support (including writing material,
envelopes, postage stamps, telephone cards) so that they are not de facto deprived of
communication with family and friends.
Visits by family and friends
The Essex group emphasised that for visits at regular intervals it is essential that prisoners are not
allocated or transferred to prisons far from their homes.
If families can only visit infrequently due to the location of the prison, prisoners could be permitted
to accumulate visiting entitlements and have longer visits or several over a couple of days. The
European Committee to Prevent Torture has emphasised the ‘need for some exibility as regards
the application of rules on visits and telephone contacts’ for families who live far away.
152
For instance, the SPT has documented good practice of a 3-day visit with overnight stays, but has
cautioned against a discriminatory effect due to high costs of overnight visits in the given context.
153
The Essex group noted that virtual visits via video conferencing may be arranged in case of
prisoners whose families live far away, and that this is particularly important for foreign national
prisoners. However, the participants also stressed that video-conferencing and other forms of
remote communication are not an adequate substitute for in-person visits.
The experts held that in light of the rationale of visits the term ‘family’ should not be interpreted
too narrowly and that in many countries the concept of family is broader than the next of kin or
immediate family members.
The UN Committee on the Rights of the Child recognises that the term ‘family’ refers to a variety of
arrangements that can provide for young children’s care, nurturance and development, including
the nuclear family, the extended family, and other traditional and modern arrangements, provided
these are consistent with children’s rights and best interests.
154
Similarly, regional bodies have
adopted broad denitions. The European Court of Human Rights has interpreted the right to private
and family life as not conned to legally acknowledged relationships.
155
The Principles and Best
Practices on the Protection of Persons Deprived of Liberty in the Americas also include ‘other
151
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on
the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment to Ukraine, 16 March 2016, CAT/OP/UKR/1, para. 140 (SPT Report on visit to Ukraine).
152
CPT 2nd General Report, [CPT/Inf (92) 3], para. 51.
153
SPT Report on visit to Ukraine, CAT/OP/UKR/1, para. 121.
154
UN Committee on the Rights of the Child, General Comment No. 7 (2005): Implementing child rights in early child-
hood, 20 September 2006, CRC/C/GC/7/Rev.1, para. 15.
155
’The notion of the “family” in Article 8 is not conned solely to marriage-based relationships and may encompass
other de facto “family” ties, where the parties are living together outside marriage’. (Keegan v. Ireland, Judgment of
26 May 1994, Series A no. 290, pp. 17-18, para. 44); see also Kroon and others v. The Netherlands (Application no.
18535/91), Judgment of 27 October 1994, para. 30; Mikulić v. Croatia (Application no. 53176/99), Judgment of 7
February 2002, para. 51.
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persons’ in the right to contact with persons outside, even though the English version does not
reect the original Spanish version in this regard (‘otras personas’ in the original version).
156
à See Chapter 5, Restrictions, discipline and sanctions – searches of visitors
Specic groups of prisoners
In a report on children of incarcerated parents, the Committee on the Rights of the Child expressed
concern ‘with regards to security matters and policies that often undermine the rights of the child’.
It reiterated the ‘right of the child who is separated from one or both parents to maintain personal
relations and direct contact with both parents on a regular basis, except if it is contrary to the
child’s best interests’.
157
The Committee recommended that ‘[t]he rights of affected children should
be regarded as a relevant factor in determining the security policy concerning incarcerated parents,
including with regard to the proportionality of the measures in relation to areas that would affect the
interaction with affected children’.
158
The Essex group recalled the UN Bangkok Rules (Rules 26 and 43) which require prisons to
encourage and facilitate visits for women prisoners. This is in recognition of their particular
situation, including the usually lower number of visits women receive because of their particular
stigmatisation and the higher physical distance from their homes. The Bangkok Rules stipulate
that measures need to be taken to counterbalance disadvantages faced by women, including as
a result of the smaller number of facilities for women. In view of the high rates of violence suffered
by female prisoners prior to imprisonment and to prevent victimisation during visits, Bangkok
Rule 44 calls on prison staff to consult women prisoners on who is allowed to visit them. Rule 23
of the Bangkok Rules states that disciplinary sanctions for female detainees shall not include a
prohibition of family contact, especially with children.
Family visits are also particularly important for juvenile prisoners, and arrangements should
therefore be favourable. Mindful of the importance of supportive family relationships of children
and adolescents, the CPT has recommended for juveniles to ‘benet from a visiting entitlement of
more than one hour every week’, and promoted that they should also be able to receive visits at
weekends. The Committee has also welcomed juveniles being ‘authorised to benet from long-
term unsupervised visits’.
159
Prison administrations should also consider visits of prisoners to their families, especially in the
period leading up to their release.
156
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, principle XVIII. Note
the original version in Spanish: ‘(…) a mantener contacto personal y directo, mediante visitas periódicas, con sus
familiares, representantes legales, y con otras personas, especialmente con sus padres, hijos e hijas, y con sus
respectivas parejas’.
157
Article 9(3) of the Convention on the Rights of the Child. See also UN Committee on the Rights of the Child, Report
and Recommendations of the Day of General Discussion on ‘Children of incarcerated parents’ 30 September 2011,
undated, para. 35 (CRC DGD 2011 Report).
158
CRC DGD 2011 Report, para. 14.
159
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), CPT
Standards: “Substantive” sections of the CPT’s General Reports, 2015, CPT/Inf/E (2002) 1 – Rev. 2015, para. 123.
The Committee has observed juveniles being allowed to communicate with family members on a regular basis by
using free-of-charge Voice over Internet Protocol (VoIP) services, and has highly welcomed such practices while
stressing that they should not be considered as a substitute for visits.
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The Essex group stressed that prisoners in pre-trial detention should be allowed to receive visits
and communicate with family and other persons at least in the same way as convicted prisoners,
and may receive additional visits and have additional access to other forms of communication.
160
Restrictions
The group looked at Rule 43(3) in detail and deduced the following with regard to the prohibition/
restriction of family contact:
• The Rule differentiates between ‘disciplinary sanctions’ as compared to ‘restrictive measures’
referring to restrictions based on security grounds.
• The rst sentence of Rule 43(3) refers to ‘prohibition’, whereas the second part governs
‘restrictions’.
• Accordingly, neither disciplinary sanctions nor measures based on security grounds may
include the prohibition of family contact.
• Restrictions on the other hand are possible, but only ‘for a limited time period and as strictly
required for the maintenance of security and order’. Moreover, it is the ‘means of family
contact’ that may be restricted, not the contact itself. For example, a visit might be limited to a
closed visit (behind a glass partition), but must not be denied entirely.
• The term ‘strictly required’ introduces a high bar for allowing the imposition of restrictions on
family contact as well as the requirement of necessity and proportionality in such imposition.
• Should security concerns have arisen in connection with a particular visitor, this should not
result in an automatic or complete ban of visits, but each case should be considered on its
merits. For example, if a visitor has delivered contraband to a prisoner, it may be justied
to order a closed visit next time, but it would not warrant a complete ban of all visits for the
respective prisoner.
In discussing Rule 58, the experts stressed that the term ‘under necessary supervision’ implies an
assessment, evaluating the risk for the specic visit and the specic type of communication (e.g.
electronic, contact visits, letter). In the context of most visits, supervision will in particular imply
visual control.
The group recalled Principle 19 of the Body of Principles, which requires that conditions and
restrictions of visits have to be ‘specied by law or lawful regulations’.
à See Chapter 5, Restrictions, discipline and sanctions
The Essex group recalled the European Prison Rules, which clearly outline that restrictions
and monitoring of visits can only be implemented if and as far as they are ‘necessary for the
requirements of continuing criminal investigations, maintenance of good order, safety and security,
prevention of criminal offences and protection of victims of crime’. The Rules also specify that ‘such
restrictions shall nevertheless allow an acceptable minimum level of contact’.
161
160
See Rule 99 of the European Prison Rules 2006, which makes it clear that untried prisoners should also be allowed
to keep in contact with the outside world and that restrictions, if any, on such contact should be particularly carefully
limited.
161
Rule 24 (2) of the European Prison Rules 2006. Furthermore, Rule 24 (3) requires national law to specifv ‘national and
international bodies and ofcials with whom communication by prisoners shall not be restricted’.
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The CPT has also emphasised that ‘The guiding principle should be the promotion of contact with
the outside world’, whereas ‘any limitations upon such contact should be based exclusively on
security concerns of an appreciable nature or resource considerations’.
162
The experts also referred to UNODC’s Handbook on Dynamic Security, according to which
‘Monitoring should be proportionate to the threat posed by a particular form of communication and
should not be used as an indirect way of restricting communication’.
163
Good practice was mentioned where the behaviour of prisoners is inuenced through privileges
and incentives rather than sanctions.
Prison administrations should exercise restraint when applying restrictions to visiting children, as
their best interests must be an overriding consideration, based on the Convention on the Rights of
the Child.
164
There need to be safeguards in place for ensuring that any restrictions to contact with the outside
world for pre-trial detainees, on the grounds of protecting the interests of an ongoing investigation
for example, are not excessive. Restrictions need to be proportionate, allow some level of contact
to the outside world and their necessity needs to be reviewed at regular intervals. The European
Prison Rules (Rules 24 and 99) stipulate that any such restrictions must be only for a specied
period, on an individual case-to-case basis and need to be imposed by a judicial authority.
Visiting environment
The visiting environment needs to balance security considerations with the provision of a positive
space for the interaction of prisoners with their families. Closed visits should not be the default
design, given the importance of direct contact for the well-being of both the prisoner and the visitor,
and of physical contact in particular for children with their parent.
165
As for the setting of family visits, the Essex group noted the importance of an environment
conducive to a positive visiting experience in particular for children, as emphasised in Rule 28 of
the UN Bangkok Rules. This Rule underlines that open contact between mother and child should
be allowed and that visits involving extended contact with children should be encouraged.
166
The
commentary on the Bangkok Rules notes that a pleasant visiting experience will not only have a
positive impact on the mental and emotional well-being of the mother and the children, but also
affect social reintegration prospects.
167
The need for a child-friendly visiting environment conducive
to building or maintaining strong relationships was also emphasised by the Committee on the
Rights of the Child.
168
162
CPT 2nd General Report, [CPT/Inf (92) 3], para. 51.
163
Handbook on Dynamic Security, p. 50.
164
Article 3(1) of the Convention requires that all decisions should be based on the need to protect the best interests of
the child.
165
For further guidance see United Nations Ofce for Project Services (UNOPS), Technical Guidance for Prison Plan-
ning: Technical and operational considerations based on the Standard Minimum Rules for the Treatment of Prisoners
(the Nelson Mandela Rules), 2016 (Technical Guidance for Prison Planning)., pp. 125-133.
166
PRI/TIJ, Guidance Document on the United Nations Rules on the Treatment of Women Prisoners and Non-custodial
Measures for Women Offenders (The Bangkok Rules), 2013, p. 75.
167
UN Bangkok Rules, Commentary on Rule 28.
168
CRC DGD 2011 Report, para. 39.
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Such conditions should equally be applied to fathers, as expressed in paragraph 12 of the
preliminary observations to the UN Bangkok Rules, recognising ‘the central role of both parents in
the lives of children’.
169
Conjugal visits
The Essex group noted that conjugal visits
170
help maintain emotional bonds between partners and
spouses and allow for some normalisation of relationships despite the limits placed on family life
by the imprisonment of one partner. The maintenance of intimate bonds has a positive impact on
the well-being and on rehabilitation and reintegration of prisoners. In the light of this rationale, the
experts recommended to facilitate conjugal visits and not to interpret the beneciaries of conjugal
visits too narrowly.
The participants highlighted the contradiction between the denial of conjugal visits and the right to
found a family, as enshrined in Article 23 of the International Covenant on Civil and Political Rights.
Furthermore, the group held that the denial of conjugal visits would contradict the principle that
limitations should only be those ‘demonstrably necessitated by the fact of incarceration’, while
otherwise prisoners retain all human rights and fundamental freedoms.
171
The European Court of
Human Rights has also held that the ‘inability to beget children is not an inevitable consequence of
imprisonment’.
172
At a minimum, Rule 58(2) requires that ‘women prisoners shall be able to exercise this right on an
equal basis with men’, reiterating the UN Bangkok Rules. Where conjugal visits are allowed, they
need to be applied without discrimination.
173
The experts reected on the argument used in some countries for denying women conjugal
visits, namely to prevent pregnancy while in prison. The experts highlighted their concern that the
consequences of limiting conjugal visits for women prisoners on these grounds may be permanent
in that it may de facto deprive women of having children altogether. Moreover, such limitation
denies the right to family and private life not only to the woman prisoner, but also to her partner.
Another argument often invoked for denying conjugal visits for women prisoners is the risk of
violence from male partners. The experts noted that this concern would equally apply to women
visiting their husbands in prison on a conjugal visit, yet is not brought up as an argument against
conjugal visits for male prisoners. Moreover, the concern has been addressed by new Rule 58(2).
It stipulates that procedures need to be in place and premises made available ‘to ensure fair and
equal access with due regard to safety and dignity’.
169
Preliminary observations, para. 12, states that ‘Some of these rules address issues applicable to both men and
women prisoners, including those relating to parental responsibilities (...). However, as the focus includes the children
of imprisoned mothers, there is a need to recognize the central role of both parents in the lives of children. Accord-
ingly, some of these rules would apply equally to male prisoners and offenders who are fathers.’
170
Conjugal visit is a term used to describe a visit of a prisoner by their spouse or partner in order to be able to exercise
an intimate relationship. This institution recognises the fact that intimacy between partners is an important prerequisite
to preserve the bonds in a relationship, and acknowledges the positive impact of continued relationships for reintegra-
tion after release.
171
OHCHR, Basic Principles for the Treatment of Prisoners,1990, Principle 5, referring to the rights set out in (among
others) the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural
Rights, the International Covenant on Civil and Political Rights and its Optional Protocol.
172
Dickson v United Kingdom [2007] ECHR 44362/04 (Grand Chamber, 4 December 2007), para. 74. The case
concerned a prisoners’ access to articial insemination facilities whilst in prison and the right to family life under article
8 of the European Convention on Human Rights.
173
Rule 27 of the UN Bangkok Rules; Rule 58(2) of the Nelson Mandela Rules.
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The Essex group reiterated that the non-discrimination requirement in Rule 58(2) means that the
right to conjugal visits equally applies to prisoners in a same-sex relationship and/or for partners
who are not legally married. The European Court of Human Rights has interpreted the right to
private and family life as not conned to legally acknowledged relationships.
174
In regards to the conditions of conjugal visits, the location and design of the visiting rooms must be
private, in line with the right to privacy and family life, equipped with sanitary facilities and a bed.
175
Access to legal representation
The Essex group welcomed the fact that the revised SMR acknowledge the right of both untried
and convicted prisoners to have access to legal representation and not only in the context of their
criminal procedure.
The experts acknowledged that the revised Rules introduce general provisions for ‘any legal
matter’ (Rule 61), and attach additional safeguards in the context of pre-trial detention (Rules 119,
120), while the entitlements and modalities of access to legal advisers and legal aid providers
‘continue to be governed by Rule 61’.
The CPT has claried that the ‘right of access to a lawyer should be enjoyed by everyone who is
deprived of their liberty, no matter how ‘minor’ the offence of which they are suspected’.
176
Proceedings for which prisoners may require legal assistance beyond and outside the pre-trial and
trial stages include appeals and other motions in the criminal procedure, but also civil proceedings
(e.g. marital and parental affairs, inheritance law etc.), potential complaints on detention conditions
and/or torture or other ill-treatment and any disciplinary sanctions or processes.
177
The experts
stressed that prisoners must not be required to disclose the nature of their wish to see a legal
representative as it would render the safeguard void.
Detention pre-trial and during trial
Rule 119 incorporates state obligations relating to arrest and pre-trial detention which will
predominantly be addressed to police and judicial authorities. Rule 119(1) reiterates the obligation
to promptly inform every untried prisoner about the reasons for their detention and the charges
against them.
178
(See Chapter 2, Prison management)
Yet, the reiteration of this principle in the revised SMR indicates a responsibility of prison
administration to ensure that the detainee in fact has received this information.
174
See for instance Keegan v. Ireland, Judgment of 26 May 1994, Series A no. 290, pp. 17-18, para. 44; Kroon and
others v. The Netherlands (Application no. 18535/91), Judgment of 27 October 1994, para. 30; Mikulić v. Croatia
(Application no. 53176/99), Judgment of 7 February 2002, para. 51.
175
Technical Guidance for Prison Planning, p. 126.
176
CPT, 21st General Report of the CPT: European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment: 1 August 2010-31 July 2011, Strasbourg, CPT/Inf (2011) 28, 10 November 2011, para. 20
(CPT 21st General Report).
177
The Inter-American Commission on Human Rights has also maintained that legal aid is a prerequisite to exercise the
right to petition (Inter-American Commission on Human Rights, Report on the Human Rights of Persons Deprived of
Liberty in the Americas, 31 December 2011, OEA/Ser.L/V/II.Doc 64, para. 254 (IACHR Report on Persons Deprived of
Liberty)).
178
See also Article 9(2) of the International Covenant on Civil and Political Rights and Principle 10 of the UN Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
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Rule 119(2) emphasises the need for pre-trial detainees to receive some form of legal advice,
either through a legal adviser of their own choice or - failing this - one assigned to the detainee.
The requirement to establish a legal aid system (‘without payment where the interests of justice so
require’, see below) is addressed primarily to the legislator/ policy-maker.
Should legal aid be denied, Rule 119(2) requires an independent review without delay. ‘Without
delay’ recognises that the object and purpose of legal representation would be undermined if no
speedy control mechanism were available.
The safeguards and rights in Rules 119 and 120 apply during the pre-trial and trial periods, as well
as during the appeal procedure (i.e. until the sentence becomes nal).
Access to legal advice overall
While the obligation to establish legal aid schemes and review mechanisms must be fullled by
legislators and policy-makers, the prison administration has a role to play in various regards.
Specically, it is required to:
• Provide information in an accessible, understandable way to the prisoners about their rights
(Rule 54(b))
• Facilitate access of prisoners to legal aid schemes (see requirement of ‘access’ to legal aid in
Rule 61(3))
• Ensure physical access, ‘without delay’, to the legal adviser of choice and/or legal aid
provider and provide the ‘opportunity, time and facilities’ for prisoners to be visited by and
communicate with their legal representatives (Rule 61(1))
179
• Refrain from interception or censorship and allow condential communication (Rule 61(1)
• Provide the prisoner with writing material for their defence (Rule 120(2))
• Allow the prisoner possession of legal documents (Rule 53)
• Facilitate access to the services of an independent competent interpreter (Rule 61(2))
• Ensure prison facilities have the necessary visiting rooms which provide the condentiality
required.
180
The Essex group emphasised the importance for the lawyer to be in the direct physical presence of
the prisoner, as pointed out by the CPT, for example. Participants also pointed to the requirement
of privacy of such consultation, as otherwise the ‘detained person may well not feel free to disclose
the manner in which he is being treated’.
181
The supportive role of prison administration in prisoners’ access to legal advice is outlined in the
Commentary to the European Prison Rules as encompassing assistance ‘with writing materials to
179
See also Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle
17; Basic Principles on the Role of Lawyers, Principle 8; UN Human Rights Committee, General Comment No. 32,
Article 14: Right to equality before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32, para. 34.
See also Vivienne O’Connor and Colette Rausch (eds.), Model Codes for Post-Conict Criminal Justice: Volume
II: Model Code of Criminal Procedure, United States Institute for Peace, 1 October 2008, Chapter 4: ‘Rights of the
Suspect and the Accused’, Article 70.
180
On the role of prison staff in ensuring condentiality see also Council of Europe, Commentary to Recommendation
Rec(2006) 2 of the Committee of Ministers to Member States on the European Prison Rules, pp. 910 (Commentary on
Rule 23, with reference to jurisprudence of the European Court of Human Rights) (Commentary to EPR).
181
CPT 21st General Report, CPT/Inf (2011) 28, para. 23.
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make notes and with postage for letters to lawyers when they are unable to afford it themselves’.
182
This should be read as including the facilitation of more modern forms of communication.
Effective access to legal advice requires, as mentioned, measures to be taken by the central prison
administration or policy-makers respectively. These include the following:
• Provide prison administrations with accessible information sheets for prisoners in the
languages spoken within the prison population.
• Provide a contact where prison administrations can access a translator, including Braille.
• Provide legal aid schemes which are accessible to persons in prisons, in the context of
criminal procedures and for other (e.g. personal) matters.
• Enshrine access to legal representation in the national prison laws and rules.
• Ensure prison facilities have the necessary visiting rooms which provide the condentiality
required for meetings with legal advisers.
While prison administrations may want to see some conrmation of an individual’s function/
qualication as legal adviser, the experts stressed that the term should not be interpreted narrowly
in light of the rationale of this provision. Persons from poor and marginalised backgrounds,
with limited nancial means and little access to education are usually overrepresented in prison
populations, making support even more relevant.
Imprisonment by denition implies reduced means to take care of one’s affairs, especially those
requiring ‘legal literacy’. At the same time many countries lack the resources and capacity to
provide comprehensive legal aid by lawyers. Access to legal advice in the context of prison should
therefore encompass all possible ways for prisoners to avail themselves of support.
Conditions of visits from legal advisers and permissible restrictions are dened in Rule 61(1), which
are generally applicable, including in the pre-trial context (pursuant to Rule 120(1)).
Legal aid
Incorporation of provisions relating to legal aid in the Nelson Mandela Rules follows the adoption,
in 2012, of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.
183
The Principles and Guidelines dene legal aid as including ‘legal advice, assistance and
representation for persons detained, arrested or imprisoned, suspected or accused of, or charged
with a criminal offence and for victims and witnesses in the criminal justice process that is provided
at no cost for those without sufcient means or when the interests of justice so require’.
184
The Principles and Guidelines recognise that ‘legal aid is an essential element of a functioning
criminal justice system that is based on the rule of law, a foundation for the enjoyment of other
rights, including the right to a fair trial, and an important safeguard that ensures fundamental
fairness and public trust in the criminal justice process’ (Principle 1, paragraph 14). Guideline 6
182
Commentary to EPR, commentary on Rule 23, with reference to ECtHR, Cotlet v Romania, 3 June 2003, appl. Nr.
38565/97.
183
UN General Assembly, 67th Session, Resolution adopted by the General Assembly on 20 December 2012: 67/187.
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 28 March 2013, A/
RES/67/187 (Legal Aid Principles and Guidelines).
184
The Legal Aid Principles and Guidelines acknowledge that states employ different models for the provision of legal
aid, and list as examples ‘public defenders, private lawyers, contract lawyers, pro bono schemes, bar associations,
paralegals and others’ (para. 8, 10).
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makes it clear that prisoners must have access to legal aid and outlines measures to be introduced
to ensure this. It was stressed that the right to legal aid applies in all criminal cases, including those
involving terrorism and other serious offences.
185
The Inter-American Court of Human Rights has consistently maintained that the right to defence is
a central component of due process, and that the right to access legal aid is a crucial part of it.
186
The term ‘legal aid service provider’ (used in Rule 61(1)) is dened in paragraph 9 of the Principles
and Guidelines, referring to ‘a wide range of stakeholders as legal aid service providers in the form
of non-governmental organizations, community-based organizations, religious and non-religious
charitable organizations, professional bodies and associations and academia’.
Rule 61 of the revised SMR incorporated this understanding by requesting ‘access to effective
legal aid’ and the ‘services of an independent competent interpreter’ where prisoners do not speak
the local language.
While legal aid mechanisms and interpretation services need to be established at the level of
policy-makers/central prison administration, local prison administrations and staff have a role to
play in terms of practical measures to make legal aid effective within their role (see above).
The Essex group stressed that it is not for prison administrations to determine whether the
interests of justice would be served by the assignment of legal aid. Decisions on
eligibility criteria for legal aid are outside of the mandate of the prison administration.
à See also Chapter 5, Restrictions, discipline and sanctions – legal assistance
Restrictions of access
The experts stressed that restrictions on access to a legal representative constitute a signicant
infringement of safeguards. As a consequence, any restrictions need to be limited to exceptional
situations and require clear prescription in law of the circumstances, decision-making body and
remedies. This is supported by Rule 61(1) (see reference to ‘applicable domestic law’).
The experts discussed that in practice restrictions refer to security concerns such as charges
of organised crime or terrorist offences, and may imply a delay in access to a lawyer, denial of
access, or restrictions regarding the conditions of consultation (for the latter see ‘Conditions of
consultation’ below).
While international standards do allow for restrictions in principle, the Essex group recalled
Principle 18 of the Body of Principles, which claries that the right of a detained person to be
visited by and to consult and communicate with his/ her legal counsel ‘may not be suspended or
restricted save in exceptional circumstances, to be specied by law or lawful regulations, when it
is considered indispensable by a judicial or other authority in order to maintain security and good
order’.
Jurisprudence has also claried that restrictions on the principle of condentiality are only justied
if there are ‘compelling reasons’ for it, and that they must be subject to review.
187
185
UNODC, Early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners, 2014,
p. 46.
186
I/A Court, Ruano Torres et al. vs El Salvador. Merits, Reparations and Costs. Judgment of October 5 of 2015. Serie C
No. 303, para. 153.
187
See Commentary to EPR, commentary on Rule 23, with reference to jurisprudence of the European Court of Human
Rights.
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The European Committee for the Prevention of Torture (CPT) considers that it might exceptionally
be necessary to delay for a certain period a detained person’s access to a lawyer of his choice, but
stressed, that this must not result in the denial of a lawyer. The Committee recommended, in such
cases, ‘access to another independent lawyer who can be trusted not to jeopardise the legitimate
interests of the investigation’. The Committee noted that it is ‘perfectly feasible to make satisfactory
arrangements in advance for this type of situation, in consultation with the local Bar Association or
Law Society’.
188
The CPT has stressed that once such a ‘replacement lawyer’ has been chosen it ‘fails to see
any need for derogations to the condentiality of meetings between the lawyer and the person
concerned’.
189
Conditions of consultation
Rule 61(1) states that ‘Consultations may be in sight but not hearing’ of prison staff, and requires
access to legal representation ‘without interception’.
190
The experts emphasised that consultations with legal advisers in full privacy, in a separate room,
should be the norm. In most cases the presence of a prison ofcer will neither be required nor
an efcient use of staff resources. Even if not listening, the presence of a prison ofcer may still
be intimidating and impact negatively on the conversation between legal adviser and prisoner.
The Rule claries that, if ever the presence of a prison ofcer is deemed necessary for security
reasons, it must not be within hearing (e.g. rooms should be designed so prison staff can observe
the consultation, but unable to hear the conversations inside). It should be noted that the safety
of the legal adviser is the only conceivable rationale behind the presence of staff, except for when
restrictions are required by a judicial authority (see above).
Where prison administrations seek to keep oversight for security considerations it could apply the
practice of multiple meetings in parallel in a large room with staff present in the distance (out of
hearing).
Decisions on limiting condentiality is outside of the prison administrations’ mandate, but would
have to be taken by a judicial authority. Guidance can be drawn, for example, from the European
Prison Rules, which state that ‘A judicial authority may in exceptional circumstances authorise
restrictions on such condentiality to prevent serious crime or major breaches of prison safety and
security’.
Condentiality of legal correspondence needs to be ensured as well.
Access to legal documents
The experts discussed the relevance of Rule 53 which enshrines the right of prisoners to have
access to their legal documents ‘without access by the prison administration’.
188
CPT 21st General Report, CPT/Inf (2011) 28, para. 22, and CPT, Report to the Turkish Government on the visit to
Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) from 16 to 17 January 2013, Strasbourg, 13 March 2014, CPT/Inf (2014) 7, para. 19.
189
CPT 21st General Report, CPT/Inf (2011) 28, para. 23.
190
European Court of Human Rights jurisprudence held that authorities cannot prevent prisoners contacting a lawyer, or
delay it. See Golder v The United Kingdom, Application no. 4451/70, 21 February 1975.
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The Rule acknowledges that physical access to legal documents is a prerequisite to exercising
one’s rights. It also seeks to protect the privacy of a prisoner’s legal matters, which is particularly
important should a prisoner issue a complaint against a staff member of the prison.
The Essex group recognised that lockable cabinets may not be possible in a prison context, but
maintained that efforts can be made to maintain some privacy nevertheless. This implies that staff
are prevented from reading prisoners’ legal documents. In order to ascertain this, prisoners should
be allowed to be present while their cell is being searched. The latter policy has been established
as good practice, including in jurisprudence.
191
It was further noted that legal les are increasingly stored digitally and this may require prisoners
being enabled to access them at a computer.
Legal documents were highlighted as one of the possessions that need to accompany a prisoner if
and when he/she is transferred.
Transfers
The Essex group noted the importance of guidance for prison administrations on the transfer and
transportation of prisoners. While this area has not been revised as such within the SMR review,
several provisions of other areas affect transfers directly.
The experts stressed that the obligations invoked when a prisoner is transferred apply regardless
of the agency or authority in charge of the transport means. This stems from the responsibility of
the state for anyone it deprives of their liberty.
192
In this context, the participants also noted that
transport of prisoners must be carried out at the expense and under the direction of the public
authorities.
193
The Essex group recalled that transfers must not be exercised with the intention of punishing,
repressing or discriminating the persons deprived of their liberty, their family or their
representative.
194
Documentation/ notication
Rule 7(c) requires documentation of the day and hour of a prisoner’s transfer in the prisoner le
system. In addition, prisoners are to be afforded the right and means to immediately notify their
family or any other person designated. The experts stressed the importance of notication of the
prisoner’s legal representative of a transfer, invoking the term ‘any other person designated’ in
Rule 68.
This is supported by the Inter-American Commission on Human Rights who have maintained that
prisoners have the right to immediately communicate with their family or third parties when he/she
is going to be transferred to another prison.
195
191
House of Lords, R. v Secretary of State for the Home Department Ex p. Daly, 23 May 2001.
192
UN General Assembly, 68th Session, Torture and other cruel, inhuman or degrading treatment or punishment: Note by
the Secretary-General, 9 August 2013, A/68/295, para. 31.
193
This is made explicit in the European Prison Rules 2006 (Rule 32.3). Paragraph 1 of this Rule refers to prisoners
being moved ‘to or from a prison, or to other places such as court or hospital’.
194
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, principle IX, 4. See
also SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment to Argentina, 27 November 2013, CAT/OP/ARG/1, para. 37.
195
IACHR Report on Persons Deprived of Liberty, para. 498 and 499.
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Safety during transfer
The experts noted the relevance of the last sentence of Rule 1 also in the context of transfer,
namely that safety and security need to be ensured ‘at all times’.
The Essex group noted that safety during transfers of prisoners from one facility to another include
prevention of escape, but also safety from violence by other prisoners or escorting staff. It further
implies measures to prevent injuries through accidents (e.g. in case of use of restraints, with
regard to the vehicles used etc.), which comprises regular checks of vehicles.
It was emphasised that provisions regarding separation of prisoners and supervision by staff
continue to apply during transfer. Female and male prisoners should not be transported together
(Rules 11(a) and 81(2)), and young prisoners must be kept separate from adults (Rule 11(d), Rule
26.3 Beijing Rules
196
). Rule 81(3) requires that women prisoners are supervised by female ofcers.
The participants noted specic risks in some countries, such as attempts to free prisoners or
attack prisoner transports. To address such risks countries may consider measures that reduce the
necessity of transports, such as by courts coming to prison rather than prisoners being transported
to court; hearings by video etc. However, such solutions should be implemented weighing the risk
against infringements of the right to fair trial and the presumption of innocence.
Conditions of transfer
Conditions of transfer need to comply with Rule 42, which species minimum material conditions
that ‘apply to all prisoners without exception’. These include light, ventilation, temperature,
sanitation, nutrition (see also Rule 22), drinking water (see also Rule 22, ‘whenever he/she needs
it’), access to open air and physical exercise (breaks depending on duration of travel), personal
hygiene (toilet breaks etc.), health-care and adequate space.
197
This implies that individuals must
not be transported in extreme heat or cold.
Specic provisions may need to be made for pregnant women, especially when advanced in
pregnancy. Pregnancy or an illness of a prisoner may impact on the composition of the team of
escorting ofcers, for example medical staff may need to be present. A medical practitioner should
advise on a prisoner’s tness to travel or any adjustments that need to be made.
Adjustments may be prompted by physical as well as psychological health considerations. Vehicles
used for transports of sick prisoners to external health-care facilities need to be adequate to their
medical condition.
198
Also, cellular (or custodial) vehicles, which often have small or no windows
and are dark, would not be suitable for detainees who are suffering from Post-Traumatic Stress
Disorder (PTSD) or claustrophobia. The experts noted that in the UK, therefore, the Inspectorate
196
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), adopted 29
November 1985 by UN General Assembly resolution 40/33.
197
This is supported in the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Amer-
icas, stating that transfers cannot be carried out in conditions that can cause physical or mental suffering, humiliate
or facilitate public exhibition. See also UN Subcommittee against Torture (SPT), for example in Report on the visit
of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to
Kyrgyzstan, 28 February 2014, CAT/OP/KGZ/1, para. 95, expressing concern about the means of transportation,
dark, without any ventilation and excessively cramped, transporting detainees with tuberculosis at the same time as
other detainees without the use of preventive measures. See also Principles and Best Practices on the Protection of
Persons Deprived of Liberty in the Americas, principle IX, 4.
198
See, for example, concern expressed in SPT Report on visit to UkraineCAT/OP/UKR/1, para. 77.
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of Prisons recommends that authorities use alternative vehicles for women affected by previous
trauma because of the inappropriateness of cellular vehicles.
199
The Essex group highlighted the relevance of Rule 5(2), i.e. the obligation to make reasonable
accommodation and adjustments for persons with disabilities. The Convention on the Rights
of Persons with Disabilities (CRPD) denes ‘reasonable accommodation’ as: ‘necessary and
appropriate modication and adjustments not imposing a disproportionate or undue burden, where
needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an
equal basis with others of all human rights and fundamental freedoms’.
200
This applies not only for logistical requirements such as wheelchair ramps, but may include a range
of other measures, e. g. breaks. The CRPD requires consultation with and active involvement of
persons with disabilities including through their representative organisations in the development
of policies and other decision-making processes concerning issues relating to persons with
disabilities.
201
Use of restraints
Transfers are one of the situations in which the use of restraints is common to prevent prisoner
escapes. Rule 47(2) acknowledges this and provides a basis for national laws to authorise the use
of restraints ‘as a precaution against escape during a transfer’.
However, the Essex group recalled that such authorisation is subject to Rule 43(1), which
prohibits the use of any restrictions that ‘amount to torture or other cruel, inhuman or degrading
treatment or punishment’. Nor does such authorisation render void the principles of necessity and
proportionality. This means that restraints may only be used when such use is deemed necessary,
rather than automatically during every transfer. Precautions need to be taken to prevent physical
harm of passengers who are restrained in vehicles in case of break action or accident, in particular
as restraints compromise the ability of prisoners to protect themselves from falling forward.
Concern has been expressed, for example, by the SPT, regarding the use of extreme security
measures irrespective of the detainee’s category (remand or convicted) or their security
assessment, and with regard to the practice of routinely using handcuffs or waist restraints during
transfers of detainees by air.
202
Furthermore, Rule 47(2) is explicit regarding the obligation to remove restraints when the detainee
or prisoner appears before a judicial or administrative authority. This is in recognition of the
subliminal message restraints may send to judges or juries; as regards untried prisoners, this is a
precondition for the presumption of innocence.
It should also be noted that when prisoners are transported to medical care facilities outside the
prison, e.g. for specialised treatment in hospitals, restraints need to be removed unless strictly
necessary, as they may hinder medical treatment and compromise the doctor-patient relationship.
199
Her Majesty’s Inspectorate of Prisons, Expectations: Criteria for assessing the treatment of and conditions for women
in prison, Version 1, 2014, p. 17.
200
Article 2, Convention on the Rights of Persons with Disabilities, A/61/611.
201
Article 4(3), Convention on the Rights of Persons with Disabilities.
202
SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment to New Zealand, 28 July 2014, CAT/OP/NZL/1, para. 111 (SPT Report on visit to New Zealand).
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Also, if restraints are used routinely rather than when strictly necessary, medical personnel may
wrongly presume that the prisoner (their patient) is dangerous.
203
Restraints should not be used if they are contraindicated in light of the medical condition of the
prisoner. For example, there should be a presumption against the use of restraints on women in
the later stages of pregnancy. Rule 48(2) of the Bangkok Rules enshrine a prohibition against the
use of restraints on women during labour or birth or immediately after birth.
204
à See Chapter 5, Restrictions, discipline and sanctions – instruments of restraint
Respect for human dignity
The experts also discussed implications of the obligation to respect the human dignity of prisoners
(Rule 1) in the context of transfers.
They stressed that the application of this principle means that prisoners should not be exposed
to public view especially while dressed in prison uniform or with instruments of restraint such as
handcuffs. It was highlighted that Rule 19(3) caters for this situation explicitly, requiring that a
prisoner be ‘allowed to wear his or her own clothing or other inconspicuous clothing’ whenever
removed outside the prison. Where prisoners do not possess non-uniform clothing, good practice
is for prison administrations to provide such clothing, especially for prisoners who appear at court.
It should be noted that Rule 73(1) states that while prisoners are being transferred the vehicle must
ensure they are ‘exposed to public view as little as possible’ and ‘safeguards should be in place to
avoid publicity or curiosity from the public’.
Transfer of possessions and les
Where prisoners are transferred to another prison facility, their possessions and les need to
be transferred with them.
205
The experts noted that Rules 67(1) and (2) need to be read as an
instruction to transfer the prisoners’ belongings to any new facility. This also applies to legal
documents, which the prisoner is entitled to keep in his/her possession pursuant to Rule 53.
Transferring such documents with the prisoner is key to preventing loss of documents, which might
infringe procedural rights, result in a delay of procedures, impede fair trial or lead to a failure to
attend court hearings.
In order to ensure professional prison administration, the entire prisoner le should be transferred
to any new facility since it provides the prison authority with crucial information about risks and
needs associated with the individual prisoner.
Medical records also need to be transferred, along with the prisoner (Rule 26(2)), to the health-
care service of the receiving institution, while retaining medical condentiality. The UN Committee
203
See, for example, SPT Report on visit to Ukraine, CAT/OP/UKR/1, para. 77, and SPT Report on visit to New Zealand,
CAT/OP/NZL/1, para. 110, expressing concern about transportation in vehicles with single ‘cages’, prisoners routinely
handcuffed and often waist-restrained, regardless of their security classication; as well as about transfers in small
cages with metal benches and without proper windows for long journeys (up to twelve hours).
204
UN Bangkok Rules, Rule 24.
205
See, for example, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punish-
ment (CPT), 3rd General Report on the CPT’s activities covering the period 1 January to 31 December 1992, 1993,
CPT/Inf (93) 12, para. 59: ‘Steps should also be taken to ensure a proper ow of information – both within a given
establishment and, as appropriate, between establishments (and more specically between their respective health-
care services) – about persons who have been identied as potentially at risk’.
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against Torture, for instance, has emphasised the fact that the condentiality of medical data
persists beyond the transfer and/or release of an inmate.
206
It was highlighted that measures must be taken to ensure that a prisoner taking any form of
medication is provided the respective medicine during transfer and upon arrival at the new facility.
Foreign national prisoners
The experts analysed Rule 62 in the light of the importance of contact with the outside world for
foreign national prisoners, although the Rule was not itself revised in the course of the review.
207
Alongside Rule 62, the experts agged the relevance of Rules 2(2), 54, 55 and 80(1) for foreign
national prisoners.
Given the high number of foreign national prisoners in many countries, practical guidance on how
to effectuate the revised standards for this group is of particular interest.
208
As a starting point, the experts noted the relevance of Rule 2(2) in the context of foreign national
prisoners, stipulating that ‘taking account of individual needs of prisoners, in particular vulnerable
categories’ does not constitute discrimination.
The participants emphasised that access to rights such as legal aid, complaints procedures and
procedural safeguards depend on prisoners being provided with the means to exercise them,
including the ability to understand them and to communicate. The written information prisoners
ought to receive upon admission according to Rules 54 and 55 (prison law and regulations;
rights including legal advice and legal aid, requests and complaints; obligations and disciplinary
sanctions) therefore needs to be available ‘in the most commonly used languages in accordance
with the needs of the prison population’.
Should a prisoner not understand any of these languages, interpretation assistance should be
provided (Rule 55(1)). Creative solutions may be required, such as the availability of telephone
interpreters. The experts also highlighted that solutions imply the recruitment of prison staff taking
into account uency in the languages common in a country’s prison population, as captured in Rule
80(1).
209
Good practice in reducing the common isolation of foreign national prisoners has been enshrined in
the Council of Europe recommendations, suggesting that they be ‘allocated to prisons where there
are others of their nationality, culture, religion or who speak their language’. It is also recommended
that special attention is paid ‘to the maintenance and development of their relationships with the
outside world, including contacts with family and friends, consular representatives, probation
and community agencies and volunteers’.
210
Recommendation 22.2. explicitly states that foreign
prisoners ‘shall be allowed to use a language of their choice during such contacts’ unless there
is ‘a specic concern in individual cases related to safety and security’. (See detailed provisions
206
UN Committee against Torture, Observations of the Committee against Torture on the revision of the United Nations
Standard Minimum Rules for the Treatment of Prisoners (SMR), 16 December 2013, CAT/C/51/4, para.21
207
See also UN Bangkok Rules, Rule 2(1) last sentence, which captures information about and the opportunity to access
consular representatives upon admission.
208
The Council of Europe, for example, has adopted specic recommendations concerning foreign prisoners (Council
of Europe, Recommendation CM/Rec (2012)12 of the Committee of Ministers to member States concerning foreign
prisoners, 10 October 2012 (CoE Recommendation on foreign prisoners)).
209
Rule 80(1): The prison director, his or her deputy, and the majority of other prison staff shall be able to speak the
language of the greatest number of prisoners, or a language understood by the greatest number of them.
210
CoE Recommendation on foreign prisoners, CM/Rec (2012)12, 16.3. and 22.1.
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on the facilitation of contact to the outside world and contact with consular representatives in
Recommendations 22.1. to 25.4.)
Consideration should be given, where possible, to providing teleconferencing facilities so foreign
national prisoners can maintain contact with their families.
211
Diplomatic and consular representation
Foreign individuals deprived of their liberty are entitled to have consular authorities of their State
or origin notied ‘without delay’ of the fact and place of their detention and/or that of questioning if
they so request.
212
The International Court of Justice has claried that ‘without delay’ does not necessarily mean
‘immediately’ upon arrest, but that ‘there is nonetheless a duty upon the arresting authorities to
give that information to an arrested person as soon as it is realized that the person is a foreign
national, or once there are grounds to think that the person is probably a foreign national’.
213
It was noted that prisoners need to be consulted prior to making contact with the diplomatic or
consular representation of the prisoners’ country of citizenship, as they are entitled to waive this
right and may in fact fear persecution from this state in some cases. In this instance, Rule 62(2)
points to national and international agencies established to protect or assist refugees or stateless
persons, such as the United Nations High Commissioner for Refugees (UNHCR).
211
Technical Guidance for Prison Planning, p. 126.
212
UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 16(2);
Vienna Convention on Consular Relations, Article 36(1)(b); Asia Pacic Forum of National Human Rights Institutions,
Minimum Interrogation Standards, 2005, para. 2.
213
International Court of Justice, Case concerning Avena and other Mexican nationals (Mexico v. United States of
America), para. 87-88.
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Chapter 4
Healthcare
Issues/rules covered:
• Provision of health-care (Rules 24-27, 30 and 31)
• Medical ethics (Rules 32 and 46)
• Role of doctors in case of signs of torture or other ill-treatment (Rule 34)
General Principles
States are under an international obligation to ensure the right to the highest attainable standard
of health
214
. The fullment of this obligation is particularly acute in prisons as a combination of
factors can make prison environments detrimental to health and wellbeing and place prisoners
in a position of vulnerability as a result. Compared to the general population, the health needs
within the prison population are typically higher in relation to physical and mental health and drug
dependencies.
215
Prisoners fully depend on the authorities to access health-care. Any act or omission by the
authorities can have a serious impact on a prisoner’s health and well-being. It is therefore critical
that there are:
• qualied staff;
• continuity of care between prisons and the community;
• robust health-care services and infrastructure are provided within prison;
216
214
UN Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attain-
able Standard of Health (Art. 12). Adopted at the Twenty-second Session of the Committee on Economic, Social and
Cultural Rights, on 11 August 2000 (Contained in Document E/C.12/2000/4) at para 43(a) available at: http://www.
ohchr.org/Documents/Issues/Women/WRGS/Health/GC14.pdf (General Comment No. 14)
215
World Health Organization Europe, Good governance of prison health in the 21
st
century. A policy brief on the organi-
zation of prison health (2013) available at: http://www.euro.who.int/__data/assets/pdf_le/0017/231506/Good-gover-
nance-for-prison-health-in-the-21st-century.pdf?ua=1 (WHO, Good governance of prison health in the 21
st
century)
216
United Nations Ofce for Project Services, Technical Guidance for Prison Planning: Technical and Operational
Considerations Based on the Nelson Mandela Rules (2016) at 151 – 157 (setting out the minimum elements that
must be provided in prisons including that: ‘[Prison facilities must include a dedicated space for the provision of
physical and mental health services, as well as dental services. Prisons that house women must include provisions
for pre- and post-natal care, and other gender-specic health care services’) available at: https://www.unops.org/
SiteCollectionDocuments/Publications/TechnicalGuidance_PrisonPlanning.pdf (UNOPS, Technical Guidance for
Prison Planning); Sub-Committee on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Report of the Sub-Committee on the Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment to Kyrgyzstan CAT/OP/KGZ/1 (2014) at paras. 90 - 94 (identifying the needs of a healthcare
system to include adequate equipment, qualied and adequately paid staff including mental health experts, adequate
and free medical supplies, a high standard of diagnostic and therapeutic services, adequate sanitary conditions,
adequate central heating and adequate training including in the assessment and response to human rights violations)
available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fOP%2fKG-
Z%2f1&Lang=en (Kyrgyzstan CAT/OP/KGZ/1)
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• prisoners’ health does not deteriorate but rather treatment is aimed at recovery and
rehabilitation;
• the prison administration always follows the medical advice and recommendations of
health-care staff;
217
• wherever possible women physicians and nurses attend to women prisoners to conduct
examinations or treatment.
218
Caregiving Mission of Health-Care Staff
The Essex Group noted that Rule 25 of the Nelson Mandela Rules pinpoints caregiving as the
fundamental mission of health-care staff in prisons. The experts advised that the rest of the Rules
on health-care should be read from this starting point as it provides the framework for health-care
in prisons in line with international human rights standards and norms.
219
They also pointed out that
the implementation of this fundamental mission requires states to ensure the adequate allocation
of resources to health-care in prisons.
Interdisciplinary Team
Rule 25(2) requires the health-care service within prison to comprise an interdisciplinary team,
including with expertise in psychology, psychiatry, dental care and pre- and post-natal care.
220
This
is reiterated in Rule 78 of the Nelson Mandela Rules that provide that ‘[s]o far as possible, prison
staff shall include a sufcient number of specialists such as psychiatrics, psychologists, social
workers, teachers and trade instructors’.
Read together with Rule 29(1)(b) which requires provision for child-specic health-care, the
interdisciplinary team must include a child-health specialist where children are in prison with a
parent. This aligns with the UN Rules for the Treatment of Women Prisoners and Non-Custodial
Measures for Women Offenders (Bangkok Rules) which require that a child health specialist is
available ‘to determine any treatment and medical needs’
221
of a child accompanying a parent.
222
217
European Court of Human Rights, Thematic Report Health-related issues in the case-law of the European Court of
Human Rights (2015) Chapter IV. Health of Detainees. A. Introduction (p. 13) available at: http://www.echr.coe.int/
Documents/Research_report_health.pdf
218
Due to common histories of violence, including sexual violence, the need for sexual and reproductive healthcare and
due to cultural reasons it is generally acknowledged that female health-care staff should attend to women prisoners
wherever possible. Rule 10(2), United Nations Rules for Treatment of Women Prisoners and Non-Custodial Measures
for Women Offenders (the Bangkok Rules) A/C.3/65/L.5 (6 October 2010) requires that an examination is undertaken
by a woman physician or nurse if a woman prisoner requests so, unless this is not possible and the situation requires
urgent medical attention.
219
See Principles of Medical Ethics relevant to the role of health personnel, particularly physicians, in the protection
of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment. United
Nations General Assembly Resolution 37/194. New York, United Nations, 1982 available at: http://www.un.org/docu-
ments/ga/res/37/a37r194.htm (UN Principles of Medical Ethics)
220
UN Committee against Torture, Observations of the Committee on the revision of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (SMR), 16 December 2013, UN-Doc. CAT/C/51/4, para. 24 available
at: http://www.refworld.org/docid/53429c014.html
221
Rule 9.
222
The Bangkok Rules recognise the central role of both parents and clarify that in para. 12 of the preliminary observations
that some of the rules apply equally to male prisoners and to offenders who are fathers.
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Full Clinical Independence
Rule 25(2) underscores the full clinical independence of the health-care service. This reects
the range of international standards and norms providing for the clinical independence of health
professionals working in prisons.
223
Rule 24(2) provides that health-care services should be ‘organised in close relationship to the
general public health administration’. When read together with Rule 25(2), the Essex Group
recalled international standards and norms that require the general public health administration
to be the entity to employ the prison health-care staff rather than the prison director in order to
safeguard clinical independence.
224
The Essex Group also noted that as provided in Rule 27(2), the prison administration must have no
inuence or go against the decisions of the health-care team. The Rule underscores that decisions
‘may only be taken by the responsible healthcare professionals and may not be overruled or
ignored by non-medical prison staff’. This is in line with medical ethics including the World Medical
Association’s Declaration of Tokyo
225
which states that:
A physician must have complete clinical independence in deciding upon the care of a
person for whom he or she is medically responsible. The physician’s fundamental role
is to alleviate the distress of his or her fellow human beings, and no motive, whether
personal, collective or political, shall prevail against this higher purpose’.
226
Equivalence of Care
Rule 24 of the Nelson Mandela Rules emphasises that health-care in prison should be equivalent
to that in the community as the right to the highest attainable standard of health under the
International Covenant on Economic, Social and Cultural Rights applies throughout the state
without distinction. Those in the community and in prisons have a right to the highest attainable
standard of health-care based on assessed individual needs and the state is required to meet the
obligation to the outside community and in prisons. Rule 24 requires the organization of health-
223
UN Principles of Medical Ethics, the Bangkok Rules, the UN Rules for the Protection of Juveniles Deprived of their
Liberty adopted by General Assembly resolution 45/113 on 2 April 1991, the Background Paper for the Trencin
Statement on Prisons and Mental Health 2007 (the Trencin Statement), the Council of Europe Committee of Ministers’
Recommendation No. R (98) 7 Concerning the Ethical and Organisational Aspects of Health Care in Prison 8 April
1998, and Principle X of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas (2008) indicate international acceptance of such obligations. The provision of health-care services operated
with full clinical independence has also been established in the Proposed Guidelines & Institutional Mechanisms A
Project of the International Dual Loyalty Working Group Guidelines for Prison, Detention and Other Custodial Settings
(Dual Loyalty Guidelines) and in the World Medical Association Declaration of Tokyo-Guidelines for Physicians
Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and
Imprisonment 1975, Rev. October 2016, available at: http://www.wma.net/en/30publications/10policies/c18/ (WMA
Declaration of Tokyo)
224
WHO, Good governance of prison health in the 21
st
century. In this document WHO suggests that in order for prisons
to meet international human rights standards and to contribute to better public health the best organisational solution
is that “health ministries should provide and be accountable for health care services in prisons and advocate healthy
prison conditions.” See also Commentary to Recommendation REC(2006)2 of the Committee of Ministers to member
states on the European Prison Rules. Strasbourg, Council of Europe (2005) available at: http://www.coe.int/t/dghl/
standardsetting/prisons/E%20commentary%20to%20the%20EPR.pdf. It reads (at p.17): “Organisation of prison
health care. Rule 40. The most effective way of implementing Rule 40 is that the national health authority should also
be responsible for providing health care in prison, as is the case in a number of European countries. (…). This will not
only allow for a continuity of treatment but will also enable prisoners and staff to benet from wider developments in
treatments, in professional standards and in training.” (Commentary to Recommendation REC(2006)2)
225
WMA Declaration of Tokyo
226
Principle 5
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care in ‘close relationship to the general public health administration’ as a means of ensuring
equivalence and continuity of care.
The Essex Group noted that in some states health-care in the community may be very poor. In
such circumstances, as outlined by the UN Ofce for Project Services in its interpretation of the
Nelson Mandela Rules, ‘[w]hile it is a typical expectation that health facilities should be equivalent
to the standard of facilities serving the broader community, it must be recognized that the absence
of local health facilities does not imply a lack of responsibility toward the healthcare of prisoners’.
227
Continuity of Care
Rule 24(2) of the Nelson Mandela Rules addresses continuity of care, a key aspect of which is
the organisation of health-care services in close relationship to the public health administration.
228
The Essex Group noted that continuity of care has two dimensions: rst, continuity with care prior
to and upon entering prison; and second, continuity with care in prison on release or transfer.
(See Rule 26(2) concerning transfer of medical les upon transfer of prisoners). For example, on
entering prison, Rule 24(2) would require prisoners to be able to bring drugs like an inhaler into
prison in order to ensure continuity of care.
229
Health-care staff have the duty to cooperate in the coordination of continuous care (see also Rule
30(a)).
230
The Essex Group noted that continuity of care extends to drug dependence, noting the
importance of ensuring that treatment allowed in the community, like methadone, is also allowed
in prisons in line with harm reduction and to avoid prisoners having to go ‘cold-turkey’.
231
The UN
High Commissioner for Human Rights, in his study on the impact of the world drug problem on
the enjoyment of human rights, emphasised the entitlement of persons in custodial settings, to
the same standard of health-care found on the outside, including with regard to prevention, harm
reduction and antiretroviral therapy.
232
The importance of continuity of care with regard to treatment
227
UNOPS Technical Guidance for Prison Planning at 153.
228
Commentary to Recommendation REC(2006)2. It reads: Organisation of prison health care. Rule 40. The most effec-
tive way of implementing Rule 40 is that the national health authority should also be responsible for providing health
care in prison (..). (…). This will (..) allow for a continuity of treatment (..).”
229
Gladkiy v. Russia, Application No. 3242/03 (ECHR, 21 December 2010) at para. 47
230
WMA Declaration of Lisbon on the Rights of the Patient (1981/Rev. 2015), available at: (http://www.wma.net/
en/30publications/10policies/l4/) Principle 1. Right to medical care of good quality (f). “The patient has the right to
continuity of health care. The physician has an obligation to cooperate in the coordination of medically indicated care
with other health care providers treating the patient. The physician may not discontinue treatment of a patient as long
as further treatment is medically indicated, without giving the patient reasonable assistance and sufcient opportunity
to make alternative arrangements for care.” See also Commentary to Recommendation REC(2006)2. It reads (at p.
17): Organisation of prison health care. Rule 40. The most effective way of implementing Rule 40 is that the national
health authority should also be responsible for providing health care in prison, as is the case in a number of European
countries. (…). This will (..) allow for a continuity of treatment (..).” It also reads (at p. 19) “Rule 42.2 provides that if
a prisoner is released before the completion of his treatment, it is important that the medical practitioner establishes
links with medical services in the community so as to enable the prisoner to continue his treatment following release.”
231
Principle 6, UNODC/WHO, Principles of Drug Dependence Treatment Discussion Paper (March 2008), available
at: https://www.unodc.org/documents/drug-treatment/UNODC-WHO-Principles-of-Drug-Dependence-Treatment-
March08.pdf; The UN Committee on Economic, Social and Cultural Rights, the Special Rapporteur on the Right to
Health and the UN High Commissioner for Human Rights have all mentioned harm reduction as part of the right to
health: UN Committee on Economic, Social and Cultural Rights, Concluding Observations: Tajikistan (24 November
2006) UN Doc No E/C.12/TJK/CO/1, at para. 70; UN Human Rights Council, Report of the Special Rapporteur on
the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt,
Mission to Sweden (28 February 2007) UN Doc No A/HRC/4/28/Add.2, at para. 60 and UN General Assembly, Report
of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and
mental health (6 August 2010) A/65/255, at para. 60; United Nations High Commissioner for Human Rights, Study on
the impact of the world drug problem on the enjoyment of human rights (4 September 2015) UN Doc A/HRC/30/65, at
paras. 21-23 (OHCHR Study on the impact of the world drug problem).
232
OHCHR Study on the impact of the world drug problem, para. 21
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such as opioid substitution and antiretroviral therapy, has been underscored by the World
Health Organization and UNAIDS, stressing that interrupting such treatment has serious health
consequences.
233
Continuity of care is also critical as a means of preventing overdoses in opioid-dependent
prisoners in the immediate post-release period. Pre-release drug services should be coordinated
with and linked to appropriate after-care.
234
The Essex Group noted the importance of training and education of the prison administration on
drug dependency.
The Essex Group also noted the importance of reading the requirement to provide continuity
of care together with Rule 2(2) of the Nelson Mandela Rules which provides that prison
administrations need to ‘take account of the individual needs of prisoners, in particular the most
vulnerable categories in prison settings’ and adopt ‘[m]easures to protect and promote the rights of
prisoners with special needs’.
When non-national prisoners are released, they may be transferred to their country of origin which
may complicate the requirement to provide continuity of care. International standards and norms
require states ‘to facilitate the continuation of medical treatment of foreign prisoners who are to be
transferred, extradited or expelled, which may include the provision of medication for use during
transportation to that State and, with the prisoners’ consent, the transfer of medical records to the
medical services of another state’.
235
Provision of Healthcare Free of Charge
Rule 24 provides that health-care should be free of charge.
236
The World Health Organization has
claried that ‘free of charge’ should be interpreted literally without any qualications or ceilings. For
example, ‘free of charge’ does not mean that prisoners should only be provided with free access
to health-care facilities (such as being transported to a hospital but then being charged for the
treatment needed) or that medications should be bought by the family.
237
Rather, it means that
access to health-care and all necessary treatment, care and medication must be free of charge.
233
WHO, UNODC and UNAIDS, Technical Guide for countries to set targets for universal access to HIV prevention, treat-
ment and care for injecting drug users (2009) available at: http://www.who.int/hiv/pub/idu/idu_target_setting_guide.pdf,
p. 26, and WHO, Consolidated Guidelines on HIV Prevention, Treatment And Care For Key Populations (July 2014),
available at: http://apps.who.int/iris/bitstream/10665/128048/1/9789241507431_eng.pdf?ua=1&ua=1 ,p. 5.
234
WHO, Preventing overdose deaths in the criminal-justice system, 2010 (updated 2014) available at: http://www.euro.
who.int/__data/assets/pdf_le/0020/114914/Preventing-overdose-deaths-in-the-criminal-justice-system.pdf?ua=1
235
Council of Europe: Committee of Ministers, Recommendation CM/Rec(2012)12 of the Committee of Ministers to
member States concerning foreign prisoners, 2012 available at: https://wcd.coe.int/ViewDoc.jsp?p=&Ref=CM/
Rec(2012)12&Language=lanEnglish&Ver=original&Site=CM&BackColorInternet=C3C3C3&BackColorIntranet=ED-
B021&BackColorLogged=F5D383&direct=true ) Rule 31.9. Further, reference could also be made to Rule 35.5 CM/
Rec(2012)12 and Council of Europe: Committee of Ministers, Commentary to Recommendation CM/Rec(2012) 12
of the Committee of Ministers to member States concerning foreign prisoners, 2012 available at: http://www.coe.int/t/
dghl/standardsetting/prisons/Rec(2012)12Commentary_E.pdf
236
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), A/
RES/43/173. Principle 24. A proper medical examination shall be offered to a detained or imprisoned person as
promptly as possible after his admission to the place of detention or imprisonment, and thereafter medical care and
treatment shall be provided whenever necessary. This care and treatment shall be provided free of charge. (http://
www.un.org/documents/ga/res/43/a43r173.htm ).
237
Møller L, Stver H, Jrgens R, Gatherer A and Nikogasian H, (eds.), Health in prisons, A WHO guide to the essen-
tials in prison health, WHO Europe (2007), available at: http://www.euro.who.int/__data/assets/pdf_le/0009/99018/
E90174.pdf, at 10 (A WHO guide to the essentials in prison health)
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When read together with Rule 25, the Essex Group suggested that a clear way to understand the
requirement to provide health-care free of charge is to understand it as all treatment and medicine
that a qualied clinician deems necessary. Medical necessity can only be determined by medical
staff and on a case-by-case basis (see Rule 27(2)). Rule 24 should therefore be read together with
Rules 30(a) and 25(2) on clinical independence; Rule 27(2) providing that clinical decisions are
the sole province of health-care professionals; and Rule 32(1) providing that treatment can only be
based on clinical grounds.
The Essex Group noted that ‘necessary’ does not refer only to life-saving treatment, procedures or
basic healthcare. Rather, it refers to the care that is necessary to maintain the established health
needs of the prisoner
238
in line with Rule 25 and the prohibition of torture and other cruel, inhuman
or degrading treatment or punishment
239
.
The Essex Group noted that Rule 24(1) requires that free health-care is provided ‘without
discrimination on the grounds of their legal status’.
240
The experts pointed to the particular risk to
non-national prisoners and pre-trial detainees and underscored that the requirement to provide
health-care free of charge applies to all prisoners without distinction on grounds of nationality or
otherwise.
The Essex Group pointed out that prisoners’ health problems can be aggravated by the prison
facilities. Therefore, Rule 24 should be read together with the obligation of the prison administration
to ensure that prisons are safe as set out in Rules 12, 13 and 35 by ensuring that the prison is
maintained in a way that does not worsen or aggravate prisoners’ health.
Medical Ethics
The Essex Group recalled that informed consent, patient autonomy and condentiality are key
components of the right to health and the cornerstones of a trustful patient-doctor relationship
which is also a precondition for effective public health.
Rule 32(1) provides that the same ethical and professional standards shall apply to the relationship
between the doctor and the prisoner-patient as between the doctor and the patient in the
community
241
.
Rule 31(1)(d) also sets out, ‘[a]n absolute prohibition on engaging, actively or passively, in acts
that may constitute torture or other cruel, inhuman or degrading treatment or punishment, including
medical or scientic experimentation that may be detrimental to a prisoner’s health, such as the
removal of a prisoner’s cells, body tissues or organs’.
238
Council of Europe: Committee of Ministers, Recommendation No. R (98) 7 of the Committee of Ministers to member
states concerning the ethical and organisational aspects of health care in prison, 1998 (available at: https://rm.coe.
int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804fb13c ) makes clear
that “necessary” refers to established health needs of individual prisoners according to their right to health, see: Main
characteristics of the right to health care in prison. A. Access to a doctor. 2. “In order to satisfy the health requirements
of the inmates, doctors and qualied nurses should be available (..), depending on the number and the turnover of
inmates and their average state of health.”
239
Council of Europe: European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment, CPT standards, 2015 (CPT/Inf/E (2002) 1 - Rev. 2015) Standard on Health care services in prisons, No.
30 p. 38: “An inadequate level of health care can lead rapidly to situations falling within the scope of the term ‘inhuman
and degrading treatment’”. Available at: http://www.cpt.coe.int/en/documents/eng-standards.pdf (CPT Standards)
240
UN Committee against Torture, Observations of the Committee on the revision of the United Nations Standard
Minimum Rules for the Treatment of Prisoners (SMR), 16 December 2013, UN-Doc. CAT/C/51/4, para. 24 (CAT SMR
revision observations).
241
The World Medical Association (WMA) gives a good collection of useful resources regarding Medical Ethics. See:
http://www.wma.net/en/20activities/10ethics/
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The Essex Group noted that in order to ensure that this requirement is met in the prison context,
training for all staff (particularly medical staff) on human rights and medical ethics will be needed
242
.
Informed Consent and Autonomy
Of particular importance to medical ethics and the right to the highest attainable standard of health
is a strong understanding of informed consent and prisoner-patient autonomy as set out in Rule
32(1)(b).
The Essex Group noted that prison authorities are under an obligation to make sure that informed
consent is documented through a written procedure.
As set out above, prisoner-patient autonomy and condentiality are cornerstones of a trustful
patient-doctor relationship. The absence of a trustful relationship may mean that prisoners may
not feel comfortable revealing health conditions that could be of public health relevance. Where
treatment is proposed, the principles of informed consent and patient autonomy mean that the
prisoner must be able to refuse treatment if he or she does not wish to receive it.
243
The information on the proposed treatment must be explained in a language that the prisoner
understands. In the very narrowest of circumstances, the Essex Group noted that medical staff
may act where the prisoner is unable to consent, for example, where the prisoner is unconscious
and requires emergency treatment. However, following the Declaration of Lisbon, where clear prior
wishes to the contrary have been expressed, even such emergency treatment is not permissible.
This Declaration provides that, ‘if a legally entitled representative is not available, consent of the
patient may be presumed, unless it is obvious and beyond any doubt on the basis of the patient’s
previous rm expression or conviction that he/she would refuse consent to the intervention in that
situation’.
244
The experts recalled that no vaginal examination of women prisoners must be undertaken without
consent and that virginity tests are prohibited explicitly by Rule 8 of the Bangkok Rules.
242
WHO, Good governance of prison health in the 21
st
century reects on State’s core obligations under the right to
health according to General Comment No. 14 and concludes with regard to health staff’s professional and ethical
conduct and their clinical independence (at p. 9) “(..) such an understanding of their role implies the necessity for
all people working in prisons to be trained in and respect human rights and medical ethics”. The Norwegian Medical
Association, in cooperation with the World Medical Association, has developed a web-based course Doctors Working
in Prison: Human Rights and Ethical Dilemma. Oslo, Norwegian Medical Association, 2001, available at: http://www.
wma.net/en/70education/10onlinecourses/20prison/ , or https://nettkurs.legeforeningen.no/enrol/index.php?id=39).
See also UN Principles of Medical Ethics and the Council of Europe’s Manual on Prison health care and medical
ethics (2015), available at: http://www.coe.int/t/dgi/criminallawcoop/Presentation/Documents/Publications_Health-
Care_manual_Web_A5_E.pdf .
243
A WHO guide to the essentials in prison health, at 37- 38; UN General Assembly, Interim report of the Special Rappor-
teur on torture and other cruel, inhuman or degrading treatment or punishment, (28 July 2008) UN doc A/63/175,
paras. 47, 74.
244
WMA Declaration of Lisbon on the Rights of the Patient (1981/Rev.2015), available at: http://www.wma.net/en/30pub-
lications/10policies/l4/, Principle 4 b.
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Rule 32(2) addresses informed consent in the context of participation in ‘clinical trials and other
health research accessible in the community’. Informed consent is always critical for participation in
clinical trials or research.
245
It is magnied in the context of deprivation of liberty.
246
As in the community, informed consent must be obtained through the provision of information to
the prisoner-patient by those conducting the trials or research (such as a company or research
institute). An ethics committee must also be involved in order to provide an independent view on
whether the treatment would produce a ‘direct and signicant’ benet to health. The Essex Group
noted that the prison authorities are under an obligation to ensure that the trial has been ofcially
approved by an appropriate body and that this information and the means of conveying it to the
prisoner must be the same as in the outside world.
Condentiality
The Essex Group reiterated the overall principle of condentiality as set out in the rst Essex
paper. In that paper, the experts stated that, the principle of medical condentiality is a
fundamental tenet of medical practice and derives from the right to privacy as recognized in
the International Covenant on Civil and Political Rights. It has also been set out in Rule 8 of
the Bangkok Rules, the World Medical Associations International Code of Medical Ethics 1949
(revised 2006), the World Medical Association Declaration of Lisbon on the Rights of the Patient,
the Dual Loyalty Guidelines, Principle X of the Principles and Best Practices on the Protection of
Persons Deprived of Liberty in the Americas, and the European Committee for the Prevention of
Torture (CPT) Standards.
The Essex Group recalled that condentiality in prisons should be understood in the same way
as in the community at large.
247
Rule 32(1)(c) requires the condentiality of medical information
‘unless maintaining condentiality would result in a real or imminent threat to the patient or others’.
The Essex Group noted that the exception to condentiality in Rule 32(1)(c) should be understood
narrowly and not as applying to the whole medical le. Rather, it requires an assessment of which
specic pieces of information need to be communicated and at what level on a ‘need to know
basis’.
248
The exception does not imply that the whole medical le should be shared but depending
on the situation, a summary of the pertinent issues (such as whether illness may have contributed
to a particular behaviour) may be necessary. Similarly, the medical staff may communicate that
certain action is needed without communicating that the prisoner has a particular disease or
illness. An assessment of who receives the information will also be needed bearing in mind the
sensitivity and condentiality of medical information.
Part of the obligation of condentiality covers the storage of condential records as set out in Rule
26. The Essex Group noted that these records should encompass a full medical le, not simply a
summary. Standard 39 of the CPT Standards provides that,
245
World Medical Association, Declaration of Helsinki - Ethical Principles for Medical Research Involving Human Subjects
adopted at 18th WMA General Assembly, rev. at 64
th
WMA General Assembly, Fortaleza, Brazil October 2013, avail-
able at: (http://www.wma.net/en/30publications/10policies/b3 ) paras 25 – 32 on informed consent in research (WMA
Declaration of Helsinki)
246
See WMA Declaration of Helsinki; CPT Standards; Council of Europe: Committee of Ministers, Recommendation
No. R (93) 6 concerning prison and criminological aspects of the control of transmissible diseases including Aids and
related health problems in prisons (1993) available at: https://bip.ms.gov.pl/Data/Files/_public/bip/prawa_czlowieka/
zalecenia/936.pdf; Council of Europe, Additional protocol Human rights to the Convention on Human Rights and
Biomedicine, concerning Biomedical Research, Strasbourg 2005 (art 20), available at: https://www.coe.int/en/web/
conventions/full-list/-/conventions/rms/090000168008371a
247
CAT SMR revision observations, para.21
248
World Medical Association, Medical Ethics Manual (3
rd
edition 2015), available at: http://www.wma.net/en/30publica-
tions/30ethicsmanual/pdf/ethics_manual_en.pdf, at 53-56
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A medical le should be compiled for each patient, containing diagnostic information as
well as an ongoing record of the patient’s evolution and of any special examinations he
has undergone.
249
Standard 40 also provides that,
A personal and condential medical le should be opened for each patient. The le
should contain diagnostic information (including the results of any special examinations
which the patient has undergone) as well as an ongoing record of the patient’s mental
and somatic state of health and of his treatment.
250
Standard 74 provides that,
Recording of the medical examination in cases of traumatic injuries should be made on
a special form provided for this purpose, with body charts for marking traumatic injuries
that will be kept in the medical le of the prisoner. Further, it would be desirable for
photographs to be taken of the injuries, and the photographs should also be placed in
the medical le.
251
The medical le should be kept separate from other les and in a lockable room that is only
accessible by the health-care staff
252
. The Essex Group also pointed out that the right of the
prisoner to access to les provided in Rule 26(1) includes the right to copy the les, not only look
at them. The les should be understood as the property of the prisoner not the prison. The experts
also noted that systems should be put in place to ensure continuity of access to medical les and
care when a prisoner is transferred to another prison or another facility so that records follow the
prisoner.
The experts recalled that for women prisoners condentiality of medical information includes
information about their sexual and reproductive health history. They noted that women prisoners
may have reasons not to want to share such information, ‘especially in countries or societies
where out of marriage pregnancies and childbirth may be a cause for stigmatisation, and in
some societies may be considered criminal acts. Information about any abortions is particularly
sensitive, due to its criminalisation in many countries’.
253
They referred to the Bangkok Rules which
acknowledge that women prisoners should only be requested to provide information about their
reproductive health history on a voluntary basis, and that no woman should be forced to provide
such information.
254
The experts referred to specic guidance on condentiality in the case of HIV and AIDS in
Principles 32 and 33 of the World Health Organization (WHO) Guidelines on HIV Infection and
AIDS in Prisons (1999):
32.Information regarding HIV status may only be disclosed to prison managers if the
health personnel consider, with due regard to medical ethics, that this is warranted to
ensure the safety and well-being of prisoners and staff, applying to disclosure the same
249
At 40.
250
At 52.
251
At 98.
252
UNOPS Technical Guidance for Prison Planning at 156.
253
Pew Research Center, Worldwide Abortion Policies (October 2015), available at: http://www.pewresearch.org/
interactives/global-abortion/
254
Penal Reform International and Thailand Institute of Justice Guidance Document on the Bangkok Rules (2013), avail-
able at: https://www.penalreform.org/wp-content/uploads/2013/10/PRI-TIJ-Guidance-Document-on-Bangkok-Rules-
October-2013.pdf, pp. 40 and 46.
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principles as those generally applied in the community. Principles and procedures
relating to voluntary partner notication in the community should he followed for
prisoners.
33.Routine communication of the HIV status of prisoners to the prison administration
should never take place. No mark, label, stamp or other visible sign should be placed
on prisoners’ les, cells or papers to indicate their HIV status.
The Essex Group also noted that in Rule 26(2), condentiality should also be ensured during
transit.
Health-care Assessment on Admission
In Rule 30, a ‘physician or other qualied health-care professional’ is required to see the prisoner
as soon as possible after admission. The rationale for this requirement is provided in Rule 24
which establishes that the state’s responsibility for the health of prisoners begins upon admission
to the prison. Assessment on admission is critical for the health of the individual. It should
therefore be offered to prisoners on admission with health-care staff explaining the benets to them
of the assessment. Without knowing the state of an individual’s health, it is not possible to take
appropriate and medically necessary measures to protect, promote or improve his or her health.
An assessment on admission necessarily requires that the physician or other qualied health-care
staff assess the prisoner’s individual health needs and any specic risks to physical or mental
health, including signs of psychological or other stress brought about by imprisonment and suicide
risks. The health-care staff must also ensure that an appropriate treatment plan is established
where needed and that the prisoner has access to the required medicines, including in continuity
of care from before entering the prison as set out in Rule 30(c). It is also necessary to minimize
withdrawal symptoms in prisoners who depend on substances and in order to identify any signs of
torture or other ill-treatment.
Assessment on admission is also important from a public health perspective in order to assess
whether newly entering prisoners carry any potential contagious diseases. Otherwise, it is not
possible to effectively protect other prisoners and staff from possible transmission and prevent
possible outbreaks (however, see the restrictions on isolation below).
The World Health Organization and the European Committee on the Prevention of Torture have
both stated that ‘as soon as possible’ should be understood as within 24 hours.
255
This timeframe
is not only important with regard to the prisoner’s health
256
and public health
257
but also in order to
identify possible signs of ill-treatment
258
, signs of stress and the risk of suicide or self-harm
259
.
The fullment of the requirements of this Rule requires record-keeping as set out in Rule 26(1).
The Essex Group also noted that this Rule should be read together with Rule 25(2) to mean that
in order to full the requirements of this Rule prisons must have ‘sufcient qualied personnel’.
‘Qualied personnel’ requires that the health-care staff are trained in applying the Manual on
255
CPT Standards para. 73 p. 98: “It is axiomatic that persons committed to prison should be properly interviewed and
physically examined by a health-care professional as soon as possible after their admission. The CPT considers that
the interview/examination should be carried out within 24 hours of admission. (…). The same procedure should be
followed when a prisoner who has been transferred back to police custody for investigative reasons is returned to the
prison.”
256
Rule 30(a).
257
Rule 30(d).
258
Rules 7(d), 30(b) and 34.
259
Rule 30(c).
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effective investigation and documentation of torture and other cruel, inhuman or degrading
treatment or punishment (“the Istanbul Protocol).
260
Their qualications should be commensurate
with the nature of the decisions they are required to take and with their reporting responsibilities.
For example, the head of a team should be a qualied medical doctor.
Rule 30(b) should be read together with Rule 34 on documentation. The Essex Group noted that
ill-treatment is not only physical but can also be mental. In order to identify any ill-treatment, they
pointed out that it is necessary to talk to the prisoner as not all signs of ill-treatment will be obvious
or visible.
In Rule 30(c), the Essex Group noted that the requirement to identify ‘any signs of psychological or
other stress’ is particularly important in relation to prisoners in the rst 24 hours of detention, pre-
trial and remand and high risk prisoners.
261
The Essex Group underscored that Rule 30 must be read together with Rules 6 – 8 of the Bangkok
Rules that set out the women-specic dimensions to the health screening (although some also
apply to men) on entry. Rule 6 provides that this ‘shall include comprehensive screening to
determine primary health-care needs, and also shall determine:
(a) The presence of sexually transmitted diseases or blood-borne diseases; and, depending
on risk factors, women prisoners may also be offered testing for HIV, with pre- and post-test
counselling;
(b) Mental health-care needs, including post-traumatic stress disorder and risk of suicide and
self-harm;
(c) The reproductive health history of the woman prisoner, including current or recent
pregnancies, childbirth and any related reproductive health issues;
(d) The existence of drug dependency;
(e) Sexual abuse and other forms of violence that may have been suffered prior to admission.
The Bangkok Rules also provide that ‘if the existence of sexual abuse or other forms of violence
before or during detention is diagnosed, the woman prisoner shall be informed of her right to seek
recourse from judicial authorities’
262
. The Rules also reiterate the right to medical condentiality
‘including specically the right not to share information and not to undergo screening in relation to
their reproductive health history’.
263
The Essex Group noted that HIV testing may be offered to prisoners with ‘pre- and post-test
counselling’, however, such testing cannot be mandatory or required.
264
260
CAT SMR revision observations, para.17; CAT, Consideration of reports submitted by States parties under article 19
of the Convention: Concluding observations of the Committee against Torture CAT/C/DEU/CO/5 12 December 2011,
para 29; CAT, Consideration of reports submitted by States parties under article 19 of the Convention: Concluding
observations of the Committee against Torture CAT/C/ETH/CO/1 20 January 2011, para 21; CAT, Consideration of
reports submitted by States parties under article 19 of the Convention: Concluding observations of the Committee
against Torture CAT/C/SVK/CO/2 17 December 2009, para 11; UN General Assembly, Interim report of the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment A/69/387 23 September 2014,
paras 32-37
261
Bangkok Rules, 6(a) - Medical Screening on entry -,7 - Procedures in case of sexual abuse or violence detected upon
screening on entry, 8 - right to refuse screening related to reproductive health history, and 9 - right of accompanying
children to undergo entry screening. Bangkok rule 9 should be linked to Nelson Mandela Rule 29.1 (b).
262
Rule 7.
263
Rule 8.
264
Bangkok Rules 6(a).
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Medical Assistance in Urgent Cases
The rst sentence of Rule 27(1) requires prisons to ‘ensure prompt access to medical assistance in
urgent cases’. The Essex Group emphasised that the determination of urgency should be made by
a clinician, not the prison administration.
The Essex Group acknowledged that in situations in which health-care staff are not present, a non-
medical person may have to take a decision on what to do. However, they noted that even in such
situations it should still be possible to telephone a health-care specialist so that the decision and
any subsequent action is informed by the advice of a health-care specialist.
The experts noted that ‘urgency’ does not only imply a life-threatening situation. Rather, it refers
to the situation in which if the prisoner was in the community, he or she would need to go to the
accident and emergency/emergency room of a hospital. The experts noted that this rule applies to
both physical and mental health.
The second sentence of Rule 27(1) provides that ‘[p]risoners who require specialized treatment
or surgery shall be transferred to specialized institutions or to civil hospitals’. The Essex Group
pointed out that this sentence is broader than the rst which only focuses on ‘urgent’ cases.
This sentence addresses situations in which prisoners may need to be taken out of the prison if
necessary in order to access specialist care. This may relate to the nature of the health complaint
or the identity of the patient (for example, access to a paediatrician for a child or young person).
Specialist care also includes mental health facilities.
Rule 27(2) provides that ‘[c]linical decisions may only be taken by the responsible health-care
professionals and may not be overruled or ignored by non-medical prison staff’. This Rule
makes clear that if the clinician determines that the prisoner needs to go to hospital, the prison
administration cannot overrule or ignore this decision in any situation, including non-urgent cases.
The Essex Group also noted that this provision should be read together with Rule 26(1) as
requiring a record to be made and maintained of the chain of decision-making as a means of
protection against abuse and to ensure accountability.
Isolation and Segregation on Grounds of Public Health
The Essex Group noted that tuberculosis (TB) or other highly contagious diseases and threats of
epidemics may require quarantine for medical reasons, as captured in Rule 30(d). It states that
‘in cases where prisoners are suspected of having contagious diseases, providing for the clinical
isolation and adequate treatment of those prisoners during the infectious period’.
The Essex Group recalled that Rule 30(d) should not be read to require the isolation or segregation
of prisoners infected by HIV.
265
Where isolation is deemed necessary this must only be for public health reasons and based on
national health protocols. The World Health Organization has set out that,
Only a medical doctor can decide on the need for isolation. The beginning and end of
quarantine measures are strictly medical decisions. The duration of isolation should be
265
The European Court of Human Rights has ruled that the segregation of prisoners with HIV, in the absence of a
reasonable and objective justication, may amount to a violation of Article 3 in conjunction with Article 14 of the ECHR,
see: Martzaklis and Others v. Greece, Application No. 20378/13 (ECHR, 9 July 2015)
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limited to the strictly necessary minimum. Medical and custodial staff will see to it that
the rights of prisoners are guaranteed as far as possible (daily walk, legal assistance,
contact with family). The quarantined sections of the prison (a cell, a section or the entire
prison) must be marked by biohazard signs (..) (such as posters and stickers) (..)
266
.
The Essex Group noted that the justication for isolation would have to be the same as it would be
outside of prison in order to prevent stigmatisation or discrimination.
Where there is separation, the input of additional health-care specialists will be required in order
to guarantee adequate treatment; it should be for the shortest period of time; and accompanied
by provision of information to prisoners including on the health implications of any decision to
refuse treatment. While separated, the Nelson Mandela Rules still apply fully to the prisoner.
Rule 46 provides direction on the role of health-care staff during a period of separation. Rule 42
also emphasises that ‘(g)eneral living conditions … including those related to light, ventilation,
temperature, sanitation, nutrition, drinking water, access to open air and physical exercise,
personal hygiene, health care and adequate personal space, shall apply to all prisoners without
exception’ including during any person of separation.
The Essex Group also noted that public health information should be given to staff on the particular
disease or illness that is being treated as otherwise they may be fearful or inuenced by inaccurate
rumours about the disease or illness that could negatively impact on the treatment (including
segregation) of prisoners.
Fitness to Work Determinations
When determining tness to work in Rule 30(e), the Essex Group emphasised the duty of medical
staff to make individual assessments of the prisoner’s ability to work against the nature of the work
he or she is offered in order to prevent prisoners from being assigned work that could result in
further physical or mental harm to them or others due to the nature of a particular illness. Medical
staff should read this Rule together with Rules 4(2), 5 and 96(1) which address activities such as
work, education and sport as activities in which prisoners are entitled to engage – should they so
wish on a voluntary basis - as a means of contributing to their well-being and rehabilitation as well
as Rules 97 – 103 on the terms and conditions of prison labour.
Daily Access to Prisoners
Rule 31 of the Nelson Mandela Rules requires that physicians and ‘where applicable, other
qualied health-care professionals shall have daily access to all sick prisoners, all prisoners who
complain of physical or mental health issues or injury and any prisoner to whom their attention
is specially directed’. The Essex Group noted that the access referred to in Rule 31 implies that
health-care professionals are informed of where all prisoners are. This Rule is also relevant to Rule
46 where prisoners are undergoing disciplinary sanctions as the medical staff need to know where
the prisoners are.
266
World Health Organization Europe, Prisons and Health (2014) chapter 8 available at: http://www.euro.who.int/__data/
assets/pdf_le/0005/249188/Prisons-and-Health.pdf
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No Role of Medical Staff in Discipline or Punishment
Rule 46 underscores that medical staff should have no ‘role in the imposition of disciplinary
sanctions or other restrictive measures’. This is in line with the UN Principles of Medical Ethics
relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and
Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
267
Similar provisions are included in the World Medical Association Statement on Body Searches
of Prisoners,
268
the International Council of Nurses Position Statement,
269
and the Dual Loyalty
Guidelines.
270
This means that doctors must not play a role in the disciplinary basis for the imposition of
sanctions. It also means that they must not assess whether a prisoner is medically ‘t’ for the
imposition of a sanction such as isolation. This is because the role of medical staff is to provide
health-care, and it is ‘in the interests of safeguarding the doctor/patient relationship, that health-
care staff should not be asked to certify that a prisoner is t to undergo punishment’.
271
They must
therefore not be involved in any decision-making which is not related to their patients’ health
needs.
Furthermore, sanctions such as solitary connement are inherently harmful to a person’s health.
It would therefore violate medical ethics, Rule 43 of the Nelson Mandela Rules which prohibits
restrictions or disciplinary sanctions that amount to torture or other cruel, inhuman or degrading
treatment or punishment as well as the fundamental mission of medical staff in prisons to provide
care as set out in Rule 25, to make an assessment of medical ‘tness’
272
for a sanction.
However, once a prisoner is undergoing disciplinary measures, the Essex Group noted that health-
care staff should pay particularly close attention to the health of prisoners held under any form of
involuntary separation, including by visiting such prisoners on a daily basis and providing prompt
medical assistance at the request of such prisoners or prison staff.
In the same vein, Rule 46(3) provides health-care staff with ‘the authority to review and
recommend changes to the involuntary separation of a prisoner in order to ensure that such
separation does not exacerbate the medical condition or mental or physical disability of the
prisoner’. The Essex Group noted that this access is protective and provides a route for the health-
267
Principle 3 of UN Principles of Medical Ethics: ‘It is a contravention of medical ethics for health personnel, particularly
physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not
solely to evaluate, protect or improve their physical and mental health’, and Principle 2: ‘It is a gross contravention
of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly
physicians, to engage, actively or passively, in acts which constitute participation in, complicity or, incitement to or
attempts to commit torture or other cruel, inhuman or degrading treatment or punishment’.
268
WMA Statement on Body Searches of Prisoners, adopted by the 45
th
World Medical Assembly, Budapest,
Hungary, October 1993 and editorially revised in May 2005 and October 2016, available at: http://www.wma.net/
en/30publications/10policies/b5
269
The International Council of Nurses, Position statement on Nurses’ role in the care of detainees and prisoners (adopted
in 1998, reviewed and revised in 2006 and 2011) available at: http://www.icn.ch/images/stories/documents/publications/
position_statements/A13_Nurses_Role_Detainees_Prisoners.pdf
270
Dual Loyalty Guidelines, Guideline 14: ‘15. The health professional should not participate in police acts like body
searches or the imposition of physical restraints unless there is a specic medical indication for doing so or, in the case
of body searches, unless the individual in custody specically requests that the health professional participate. In such
cases, the health professional will ascertain that informed consent has been freely given, and will ensure that the pris-
oner understands that the health professional’s role becomes one of medical examiner rather than that of clinical health
professional’. See also the Trencin Statement, 13-14.
271
CPT Standards, para. 73, p. 47.
272
Principle 3 and 4(b), UN Principles of Medical Ethics; Commentary to Recommendation REC(2006)2, Rule 43, p.21;
CPT Standards, para. 73, p.47.
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care staff to advise the prison administration on a harmful practice for so long as it persists and
until it is phased out.
à On the tension between medical ethics and the specic duty of care towards prisoners
see also Chapter 5, Restrictions, discipline and sanctions – Role of medical personnel
Documentation of Signs of Torture
Rule 34 requires medical staff to ‘document and report (…) any signs of torture or other cruel,
inhuman or degrading treatment or punishment’ that they become aware of and to report these
signs ‘to the competent medical, administrative or judicial authority’. The Rule requires that ‘proper
procedural safeguards are followed in order not to expose the prisoner or associated persons to
foreseeable risks of harm’.
The Essex Group noted that health-care staff must record all signs and traces of torture and other
ill-treatment in a prisoner’s medical le. The Committee against Torture has stated that medical
‘examinations should be carried out in private by a health professional trained in the description
and reporting of injuries, include an independent and thorough medical and psychological
examination, and the results be kept condential from police or prison staff, and shared only with
the detainee and/or the detainee’s lawyer, in accordance with the Istanbul Protocol’.
273
The Essex Group suggested that it would also be desirable for the health-care team to compile
periodic statistics on the types of injuries observed in prison and to submit this to the prison
administration and ministry of justice.
274
However, such statistics should anonymise the data and
ensure that re-identication is not possible to prevent further harm to prisoners.
The Essex Group noted that health-care professionals should systematically ask prisoners for
their consent to report signs of torture or other ill-treatment. On its face, the obligation to report
any signs of torture or other ill-treatment conicts with the principles of informed consent and
condentiality in situations in which documentation and reporting is contrary to the prisoner’s
wishes, for example, for fear of reprisals. For this reason, the Essex Group recommended that the
Rule should be interpreted as prohibiting automatic or systematic reporting of torture or other cruel,
inhuman or degrading treatment or punishment without the informed consent of the prisoner.
275
The
absence of informed consent would violate basic principles of medical ethics and the condentiality
and trust of the doctor-patient relationship.
This approach has also been taken in Rule 7 of the Bangkok Rules, which underscores the
requirement of informed consent to report signs of torture and other ill-treatment. It states that
if sexual abuse or other forms of violence before or during detention is diagnosed, the woman
prisoner shall be informed of her right to seek recourse from judicial authorities and of the
procedures and steps involved. However, it claries that the case can only be referred to the
competent authority for investigation ‘if the woman prisoner agrees to take legal action’.
The Istanbul Protocol provides that where the prisoner has not consented to reporting, the health-
care professional is in a position of dual loyalty between the individual prisoner concerned and
society at large ‘which has an interest in ensuring that justice is done and perpetrators of abuse
are brought to justice’
276
. In such a situation, the Istanbul Protocol suggests that, ‘[t]he fundamental
273
Kyrgyzstan CAT/OP/KGZ para. 57
274
CPT Standards para. 62 p. 44
275
Bangkok Rule 7
276
paras. 69 and 72
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principle of avoiding harm must feature prominently in consideration of such dilemmas. Health
professionals should seek solutions that promote justice without breaching the individual’s right
to condentiality. Advice should be sought from reliable agencies; in some cases this may be
the national medical association or non-governmental agencies. Alternatively, with supportive
encouragement, some reluctant patients may agree to disclosure within agreed parameters’.
The health-care professional may, therefore, assist the prisoner with identifying other routes to
report the allegations of torture or other ill-treatment such as detention staff, forensic medical
specialists, inspectors and monitors. Rule 7(2) of the Bangkok Rules also provides that ‘[w]hether
or not the woman chooses to take legal action, prison authorities shall endeavor to ensure that she
has immediate access to specialized psychological support and counselling’.
The experts considered that more detailed discussion and guidance is needed on how to deal with
the situation of dual loyalty identied in the Istanbul Protocol and how to maintain condentiality
and informed consent while bearing in mind the do no harm principle.
à See Chapter 2, Prison management – Inspections and external monitoring/ objectives for
internal and external inspection
à See Chapter 6, Incident management – investigations
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Chapter 5
277
Restrictions, discipline
and sanctions
Issues/rules covered:
• Disciplinary sanctions (Rules 36, 37, 39, 41, 42 and 43)
• Solitary connement/isolation (Rules 38, 44, 45 and 46)
• Instruments of restraint (Rules 47, 48 and 49)
Introduction
At the outset, the Essex group stressed that the Rules apply comprehensively to restrictions and
sanctions, regardless of the term used to describe them.
The experts pointed to the structure of provisions in this section, with a number of Rules covering
disciplinary sanctions (Rules 39-41) specically, and others applying more broadly to ‘other
restrictive measures’/‘restrictions’. The participants noted that these Rules apply regardless of
whether the restriction is imposed as a disciplinary sanction (intended to be punitive in nature) or
for other reasons, unless the text of a specic rule states otherwise.
The Essex group noted that the revised SMR use the term ‘other restrictive measures’ without
dening it.
278
From the context of its use it can be deducted that the term:
• describes limitations in the context of contact to the outside world (visits)
• refers to measures imposed not as a disciplinary sanction, but in the context of ‘safety and
security’, presumably including measures to prevent inter-prisoner violence and risks of self-
harm and suicide
• is used in the context of the use of instruments of restraint.
The experts noted CPT-standards which also highlight that ‘Other procedures often exist,
alongside the formal disciplinary procedure’, describing measures like involuntary separation from
other detainees ‘for discipline-related/security reasons (e.g. in the interests of “good order” within
277
This chapter was authored by Andrea Huber, Penal Reform International, with the support of Sharon Critoph.
278
In Rule 36 (‘no more restriction than necessary’), Rule 43(3), Rule 46 (1, 2). Principle 19 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment uses the term in the context of access to
the outside world (‘can only be denied subject to reasonable conditions and restrictions as specied by law’).
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an establishment)’ and pointing out that these procedures should also be accompanied by effective
safeguards.
279
The Essex group noted that Rule 36 is laying down the only possible purposes for restrictions, i.e.
safe custody, secure operation of the prison and a well-ordered community life.
The experts considered that more detailed discussion and guidance will be needed with regard to
the differentiation between disciplinary sanctions and ‘other restrictions’. Other issues identied as
requiring more discussion and practical guidance were the application of Rule 39(3); compensatory
measures as described in Rule 38(2); and criteria to assess whether solitary connement would
exacerbate the situation of prisoners with mental or physical disabilities.
General principles
The Essex group emphasised the means and tools at the disposal of prison administrations in
order to avoid and prevent disciplinary infractions in the rst place, and pointed out ve overarching
principles:
1. Restrictions and disciplinary sanctions should not be a rst response to problems within
prisons – they may only be imposed once steps aimed at preventing conicts or resolving
them through other means have failed (Rule 38(1)).
2. Only such restrictions and disciplinary sanctions as are provided in laws and regulations may
be imposed (Rules 37).
3. No restrictions or disciplinary sanctions may involve lowering the general living conditions
(Rule 42).
4. Measures need to be necessary and proportionate, and need to be imposed through fair
proceedings (Rule 39(1) and (2)).
5. Restrictions or disciplinary sanctions must never amount to torture or other cruel, inhuman or
degrading treatment or punishment (Rule 43(1)).
280
Principle of legality
The Essex group pointed to Rule 37, which enshrines the principle of legality and claries that
authorisation by law or by regulation is always required to determine:
281
• what conduct constitutes a disciplinary offence and what conduct/situation may prompt ‘other
restrictions’
• types and duration of sanctions/restrictions that may be imposed
• the authority competent to impose such sanctions/restrictions
• any form of involuntary separation from the general prison population (whichever term is
used e.g. isolation, segregation, restricted housing or special care units and regardless of
whether or not it is applied as a disciplinary sanction or citing order and security reasons).
279
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 2nd
General Report on the CPT’s activities covering the period 1 January to 31 December 1991, 1992, CPT/Inf (92) 3,
para. 55 (CPT 2nd General Report).
280
Rule 47(1) applies this principle specically to instruments of restraint.
281
Rule 37 reects Principle 30(1) of the Body of Principles for the Protection of All Persons Under Any Form of Detention
or Imprisonment.
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Information about prison rules
The Essex group noted that provision of clear and comprehensive information about prison rules
and procedures is an important tool in order to prevent disciplinary infractions in the rst place.
The experts therefore stressed that Rule 37 should be made known to the prisoners, and should
be part of the information provided under Rule 54 (a, c) in writing and in a language and format
they understand (Rule 55). Such information should include what types of conduct constitute a
disciplinary offence, and the possible sanctions associated with each.
The importance of making the rules and regulations for disciplinary procedures known amongst
both prisoners and prison ofcials, including through the distribution of printed copies, has been
emphasised by the Inter-American Commission on Human Rights.
282
Conict prevention and mediation
The Essex group stressed the importance of conict prevention, mediation and alternative
dispute resolution as means to avoid disputes and disciplinary infractions. They pointed to the
encouragement to this end in Rule 38(1) and also in Rule 76(1c) on dynamic security training for
prison staff.
The experts referred to the rst ‘Essex paper’, in which they had pointed to the ‘many effective
and well-proven ways in which to deal with security and order in places of detention such as
the conguration and infrastructure of the place of detention; adequate numbers of well-trained
staff; an effective system of classication and separation of detainees; positive staff-prisoner
relationships, which enable prison staff to anticipate and proactively deal with problems; dynamic
security and conict resolution tools such as mediation’.
283
The ‘preventive principle’ has also been stressed by the Special Rapporteur on Torture, who stated
that ‘it is essential that the Rules provide for an obligation for prison authorities to use disciplinary
measures on an exceptional basis and only when the use of mediation and other dissuasive
methods to resolve disputes proves to be inadequate to maintain proper order’.
284
à See Chapter 2, Prison management – dynamic security and conict prevention
Proportionality
The Essex group stressed the principle of proportionality for disciplinary sanctions and restrictive
measures, enshrined in Rule 39 (2). They noted that Rule 36 provides guidance for applying
this principle in that it requires discipline and order to be ‘maintained with no more restriction
than is necessary to ensure safe custody, the secure operation of the prison and a well-ordered
community life’.
282
Inter-American Commission on Human Rights, Report on the Human Rights of Persons Deprived of Liberty in the
Americas, 31 December 2011, OEA/Ser.L/V/II.Doc 64, para. 380.
283
University of Essex/Penal Reform International, Second Report of Essex Expert Group on the Review of the Standard
Minimum Rules for the Treatment of Prisoners, prepared by Penal Reform International/Essex University, 20 March
2014, UNODC/CCPCJ/EG.6/2014/NGO.7, para. 43 (Essex 2), with reference to Penal Reform International/Associ-
ation for the Prevention of Torture, Balancing security and dignity in prisons: a framework for preventive monitoring,
2013, p. 18.
284
UN General Assembly, 68th Session, Torture and other cruel, inhuman or degrading treatment or punishment: Note by
the Secretary-General, 9 August 2013, A/68/295, para. 57 (Special Rapporteur on Torture report 2013).
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The experts reviewed the report of the UN Special Rapporteur on Torture who has stressed that a
punishment disproportionate to the offence ‘would be tantamount to improperly making the nature
of the deprivation of liberty harsher’.
285
The experts recalled that proportionality must be ensured on a case by case basis and any
sanction must be commensurate with the harm caused by the infraction as well as the individual
circumstances of the prisoner involved. The participants pointed to guidance provided by
the European Committee for the Prevention of Torture (CPT), which held that in order to be
proportionate, any restriction of a prisoner’s rights ‘must be linked to the actual or potential harm
the prisoner has caused or will cause by his or her actions (or the potential harm to which he/she is
exposed) in the prison setting’.
286
The experts reasoned that the interpretation of ‘harshness’ is subjective to some extent, and
sanctions perceived as minor by one prisoner may have severe repercussions for another,
depending on their personal circumstances.
This is supported by the commentary to Rule 5 of the UN Standard Minimum Rules for the
Administration of Justice (Beijing Rules),
287
although it refers to criminal sanctions. It states
that consideration should not only be based on the gravity of the offence but also on personal
circumstances, and lists as examples ‘social status, family situation, the harm caused by the
offence or other factors affecting personal circumstances’.
In this context the Essex group reiterated that restrictive measures must not be applied to
prisoners by virtue of their sentence and endorsed the assessment of the Committee Against
Torture (CAT) which rejected ‘the application of additional and severe punishments on prisoners
serving life sentences, such as handcufng when outside cells, and segregation’.
288
Furthermore, the experts stressed that rules and regulations governing sanctions and restrictive
measures need to be reviewed over time in the light of the proportionality principle.
The Essex group highlighted the considerable impact of the regime of disciplinary sanctions,
discipline and restrictive measures on the institutional culture of a prison facility and on the
rehabilitation and reintegration prospects of prisoners.
289
They noted an example documented
by the UN Sub-committee for Prevention of Torture (SPT), where due to the modalities regarding
disciplinary measures the ‘overall attitude was one of resignation and fear of reprisals’.
290
Consideration of disabilities
The Essex group pointed to Rule 39(3) which requires that prison administrations consider
‘whether and how a prisoner’s mental illness or developmental disability may have contributed to
his/her conduct’ before imposing disciplinary sanctions.
285
Special Rapporteur on Torture report 2013, A/68/295, para. 57.
286
CPT, 21st General Report: 1 August 2010-31 July 2011, Strasbourg, 10 November 2011, [CPT/Inf (2011)28] para. 53
onwards (CPT 21st General Report), para. 55(a).
287
Adopted by UN General Assembly resolution 40/33 on 29 November 1985.
288
UN Committee against Torture, Observations of the Committee against Torture on the revision of the United Nations
Standard Minimum Rules for the Treatment of Prisoners (SMR), 16 December 2013, CAT/C/51/4, para. 39 (CAT SMR
revision observations).
289
See PRI/APT, ‘Institutional culture in detention: a framework for preventive monitoring’, Detention Monitoring Tool, 2nd
edition, 2016.
290
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on
the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment to Ukraine, 16 March 2016, CAT/OP/UKR/1, para. 124 (SPT Report on visit to Ukraine).
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Should a direct link be found between the conduct and the prisoner’s ‘mental illness or
psychosocial disability’,
291
then no sanction may be imposed, in line with Rule 39(3).
The Rule seeks to account for limitations persons with disabilities might have in regulating
independently their behaviour in relation to obeying a norm.
The participants recommended that any suspicion that mental health problems may have
contributed to an infraction should trigger a process which involves consultation with relevant staff,
such as psychologists and medical staff.
When external medical practitioners are consulted on a prisoner’s mental health status or
intellectual or psychosocial disability in relation to a disciplinary infraction, the reasons for the
consultation and their role within that process must be made clear to them. The participants
stressed that such assessments should be inter-disciplinary and should take into account the
psycho-social condition of the prisoner.
In this context, the experts recalled Rule 46, according to which ‘[h]ealth-care personnel shall
not have any role in the imposition of disciplinary sanctions or other restrictive measures’. (See
Chapter 4, Health-care – medical ethics)
It was noted that in a well-functioning prison system, prison ofcials are aware of physical, mental,
intellectual or sensory illnesses or disabilities of prisoners, as they are required to ensure their full
and effective participation, inclusion and access to prison life in line with Article 3(c) of the CRPD
and Rules 5(2) of the Nelson Mandela Rules.
The Essex group recalled the condentiality of medical records (Rule 26), but noted the recognised
practice of information being provided to prison staff on a need-to-know basis, which protects
privacy and condentiality of sensitive information while enabling prison staff to full their task,
including provision for individual needs of prisoners in line with Rule 2(2).
The participants suggested that it may be useful to consult prison staff who are familiar with the
prisoner alleged to have committed an infraction, especially in a dynamic security setting, which is
based on frequent interaction and constructive relationships with prisoners. (See Chapter 2, Prison
management)
Procedural rights in disciplinary proceedings
The experts claried that the ‘principles of fairness and due process’ (Rule 39(1)) must be
interpreted in line with the principles reected in Article 14 of the International Convention on Civil
and Political Rights (ICCPR).
They drew on guidance provided by international human rights instruments, bodies and
jurisprudence to list the following, non-exclusive elements of due process in disciplinary
proceedings:
• information about the charges
• right to defence
• legal representation
291
The experts expressed their preference for the terminology used in the UN Convention on the Rights of Persons with
Disabilities (CRPD) (‘person with disability’) as the internationally agreed and less ambiguous term.
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• adequate time and facilities to prepare
• opportunity to cross-examine witnesses
• opportunity to examine evidence
• hearing in person
• receipt of a copy of any disciplinary decision
• possibility of review by independent authority against a sanction imposed (appeal).
Guidance on this issue has been provided by the UN Committee against Torture (CAT), for
example, listing fair trial guarantees for disciplinary proceedings in prison, including ‘to be heard in
person; to call witnesses and examine evidence given against them; to be provided with a copy of
any disciplinary decision concerning them and an oral explanation of the reasons for the decision
and the modalities for lodging an appeal, and to appeal to an independent authority against any
sanctions imposed’.
292
The CAT has emphasised that detainees need ‘to be informed in writing of the charges against
them’.
293
For juveniles this is supported also by Rule 70 of the Beijing Rules,
294
which states that
‘No juvenile should be sanctioned unless he or she has been informed of the alleged infraction in a
manner appropriate to the full understanding of the juvenile’.
The CPT has also detailed procedural safeguards that should apply in the case of disciplinary
proceedings, including that the ‘prisoner should be informed in writing of the reasons for the
measure taken against him (it being understood that the reasons given might not include details
which security requirements justify withholding from the prisoner)’ and ‘be given an opportunity to
present his views on the matter’.
295
The requirement for the prisoner to be provided ‘with a copy of any disciplinary decision concerning
them and an oral explanation of the reasons for the decision and the modalities for lodging an
appeal’ has been enunciated by the CAT, for example.
296
The Essex group discussed what would constitute ‘adequate time and facilities’ for the preparation
of a defence (Rule 41(2)), and suggested that such facilities include, at a minimum, copies of or
electronic access to the prison rules and regulations,
297
access to assistance from designated
prison staff/other prisoners/civil society representatives and basic materials such as pen and paper
or access to a computer.
Participants agged that family members may be accused of prison rule violations, resulting in
restrictions against the prisoner. They stressed that such allegations need to be documented and
that there needs to be a possibility to dispute not only violations by the prisoner him/herself, but
also those allegedly committed by family members if they impact on the prisoner’s rights. It was
also pointed out that denial of visits infringes on the right to a private and family life not only of the
prisoner, but also their relative(s).
292
CAT SMR revision observations, CAT/C/51/4, para. 41.
293
CAT SMR revision observations, CAT/C/51/4, para. 41.
294
UN Rules for the Protection of Juveniles Deprived of their Liberty.
295
CPT 2nd General Report, [CPT/Inf (92) 3], para. 55 including footnote 1.
296
CAT SMR revision observations, CAT/C/51/4, para. 41.
297
Rule 54 required the provision of written information ‘promptly’ upon admission, including information about prison law
and regulations.
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Right to defence
The Essex group discussed Rule 41(3), requiring an opportunity for prisoners to defend
themselves in the case of an allegation of a disciplinary nature. They may do so themselves or
through legal assistance (see below).
The experts considered that the right of prisoners to defend themselves ‘in person’ should be
interpreted as that person having the opportunity to appear in front of, and be heard by, the
decision-making body.
Should the prisoner not understand the language used in such hearing, an interpreter needs to be
made available free of charge (Rule 41(3)).
Legal assistance
Rule 41(3) provides that detainees may want to defend themselves through legal assistance
and species that such should be possible ‘when the interests of justice so require’. This applies
‘particularly in cases involving serious disciplinary charges’. The Essex group considered that
every allegation which can be prosecuted by judicial authorities ipso jure constitutes a ‘serious
disciplinary charge’, but that the term is not limited to such offences. Other factors have to be
taken into account when determining whether disciplinary charges are ‘serious’. The Essex group
considered that the following are examples of such situations:
• in particularly complex cases
• if the applicable law or prison regulation is not clearly worded
• if the prisoner lacks the capacity to understand the process or the accusation against him/her
or the ability to defend him/herself
• where infractions could lead to serious collateral consequences for the prisoner (e.g. removal
of eligibility for parole or early release)
• where the disciplinary sanction would result in a material change in the conditions of
imprisonment (e.g. transfer to solitary connement; transfer to a high security prison).
Judicial review
Rules 41(4) set out the right of prisoners to seek judicial review of disciplinary sanctions imposed
on them. The Essex group pointed to the particular relevance of this right for serious forms of
punishment (see above).
Rule 41(5) claries that criminal procedural standards and due process rights apply should an
act in prison be prosecuted as a crime within the regular justice system. This provision intended
to ensure that the fair trial rights enshrined in the International Covenant on Civil and Political
Rights (ICCPR) and other respective treaties are not undermined by the formulation of disciplinary
offences. The Nelson Mandela Rules call for ‘unimpeded access to a legal adviser’ in such cases.
The right to appeal to a competent impartial authority has also been enshrined explicitly in Rule
70 of the Beijing Rules. The CPT has incorporated a similar recommendation in their standards,
calling for the right of appeal at a ‘higher authority’ and the ability to ‘contest the measure before an
appropriate authority’.
298
298
CPT 2nd General Report, [CPT/Inf (92) 3], para. 55.
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Types of sanctions and restrictions
Prohibited sanctions and restrictions
While focusing their deliberations on specic provisions, the Essex group recalled a number of
sanctions and restrictive measures explicitly prohibited by the Nelson Mandela Rules:
1) collective punishment (Rule 43(1e)
2) restrictions of general living conditions (Rule 42)
299
3) indenite or prolonged solitary connement (Rule 43(1a, 1b), see below)
4) placement in a dark cell (Rule 43(1c))
5) placement in a constantly lit cell (Rule 43(1c))
6) corporal punishment (Rule 43(1d))
7) reduction of a prisoner’s diet or drinking water (Rule 43(1d))
8) collective punishment (Rule 43(1e))
9) use of restraints as a punishment (Rule 43(2)
10) torture and any other cruel, inhuman or degrading treatment or punishment (Rule 1)
11) being sanctioned twice for the same act or offence (Rule 39(1)).
The Essex group pointed to the distinction between acts that can be pursued at the level of prison
administrations as disciplinary offences, and those that need to be investigated and prosecuted
by judicial authorities.
300
They shared the assessment of the Special Rapporteur on Torture who
asserted that ‘Any act that may amount to a crime should be dealt with by the authorities of justice
administration and not by penitentiary or prison staff’.
301
The CAT has held that ‘[a]ny offences
committed by a prisoner which might call for more severe sanctions should be dealt with through
the criminal justice system’.
302
The experts pointed out that any other form of punishment that constitutes torture or other cruel,
inhuman or degrading treatment or punishment is prohibited.
They recalled jurisprudence of the Inter-American Court of Human Rights which has held that
certain disciplinary punishments, including bodily punishments, placement in dark cells and
prolonged connement, as well as any other measure that could cause harm to the physical
299
The Essex group recalled that a provision on the reduction or suspension of food has been deleted in the course of
the review as it is incompatible with international law (Special Rapporteur on Torture report 2013, para. 58; Principle
XI Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas of the Inter-Amer-
ican Commission on Human Rights).
300
See deliberations on this question in ECtHR, Campbell and Fell v The United Kingdom (ECHR 28 JUN 1984).
301
Special Rapporteur on Torture report 2013, A/68/295, para. 57.
302
CAT SMR revision observations, CAT/C/51/4, para. 33.
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or mental state of the person, constitute cruel, inhuman or degrading treatment.
303
Where such
punishments cause severe pain or suffering, they constitute torture.
304
The experts noted further examples such as the ‘deliberate non-separation of inmates from
persons with active tuberculosis, and the denial of medical assistance’.
305
The practice of frequent transfers to remote locations and different places in the country has
been documented as a problematic form of punishment or reprisal, often taking place without the
families being informed and in degrading conditions (poor state of vehicles, long periods of travel,
sometimes without food).
306
(See Chapter 3, Contact with the outside world – transfers)
The experts noted reports about ‘combinations’ of prohibited practices, such as disciplinary and
solitary connement cells with poor material conditions and hygiene, without drinking water or
inadequate lighting or ventilation, freezing or hot temperatures.
307
Collective punishment
The Essex group highlighted that the prohibition of collective punishment in Rule 43(e) reects
a well-established principle in human rights law. The experts referred to comparable prohibitions
enshrined in the African Charter on Human and Peoples’ Rights and the American Convention on
Human Rights, the former stating that ‘[p]unishment is personal and can only be imposed on the
offender’.
308
The Principles and Best Practices on the Protection of Persons Deprived of Liberty
in the Americas emphasise that ‘[t]he imposition of collective punishments shall be prohibited by
law’.
309
The experts underlined that the term ‘collective punishment’ describes sanctions intentionally
directed at the whole prison population, a group of prisoners or specic ones (for example
prisoners in a specic cell) for infractions for which they bear no responsibility.
An example was mentioned, documented by the SPT, where ‘extended lock-downs were used as
a form of collective punishment for all those in a block or unit where there has been an incident,
regardless of their involvement in an alleged offence’.
310
303
I/A Court H.R., Case of Pacheco Teruel et al v. Honduras. Merits, Reparations and Costs. Judgment of April 27, 2012.
Series C No. 241, para. 67.k.
304
See, for instance, Commission on Human Rights, Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted
pursuant to Commission on Human Rights resolution 1995/37 B, E/CN.4/1997/7, 10 January 1997, paras. 7-8; Curtis
Francis Doebbler v Sudan (236/2000), African Commission on Human and Peoples’ Rights (2003), para. 42; Caesar v
Trinidad and Tobago (Ser. C No. 123), Inter-American Court of Human Rights (2005), para. 73.
305
SPT Report on visit to Ukraine, CAT/OP/UKR/1, para. 133.
306
See for example Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment to Argentina, 27 November 2013, CAT/OP/ARG/1, para. 37; see also CPT 2nd
General Report, para. 57.
307
A report by the SPT on its visit to Ukraine is referred to in this context merely as an illustrative example, SPT Report
on visit to Ukraine, CAT/OP/UKR/1, para. 116. See also SPT, Report on the visit of the Subcommittee on Prevention of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Kyrgyzstan, 28 February 2014, CAT/OP/
KGZ/1, para. 84. Flooding of punishment cells with rainwater have been documented in Brazil, for example (see SPT,
Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment to Brazil, 5 July 2012, CAT/OP/BRA/1, para. 124.)
308
Article 7(2) of the African Charter on Human and People’s Rights; Article 5(3) of the American Convention on Human
Rights.
309
Inter-American Commission on Human Rights, Principles and Best Practices on the Protection of Persons Deprived of
Liberty in the Americas. Principle XXII.4.
310
SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment to New Zealand, 28 July 2014, CAT/OP/NZL/1, para. 37.
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The participants mentioned the problem that security breaches of individuals often result in
sweeping changes affecting the whole prison population. For example, misuse of the ability to
deliver items to prisoners (e.g. hiding prohibited items in goods) may lead to the prohibition of the
respective good or goods brought by relatives overall. However, the experts reasoned that such
measures have the effect of collective punishment and are particularly problematic in countries/
locations where prisoners depend on family members to bring food, medication and hygiene
products.
Restrictions on family visits
The experts noted that solitary connement must not be compounded by restrictions on family
contact unless strictly required for the maintenance of security and order (Rule 43(3)). Family
contact in 43(3) must be understood to include visits and other means of contact as dened in Rule
58(1b).
The experts claried that restrictions on family contact may be imposed if visiting rights were
abused to break prison rules and regulations (e.g. a family member smuggling illegal items into
the prison during the visit), but that restrictions should only be imposed on the particular family
member involved, and not on the family as a whole.
The Essex group highlighted Principle 19 of the UN Body of Principles, which stipulates that
access to the outside world can only be denied subject to reasonable conditions and restrictions as
specied by law or lawful regulations.
For juveniles, the CPT has stressed that their ‘contact with the outside world should never be
denied as a disciplinary measure; nor should it be limited unless the disciplinary offence relates to
such contact’.
311
The experts recalled Rule 23 of the Bangkok Rules which states that disciplinary
sanctions for women prisoners shall not include a prohibition on family contact, especially with
children.
à See Chapter 3, Contact with the outside world – contact with family and friends/
restrictions
Solitary connement
The Essex group recalled the rationale for introducing provisions on solitary connement in the
course of the review of the SMR, in particular the severe and long-lasting damage isolation can
cause to human beings. Medical research conrms that the denial of meaningful human contact
can cause ‘isolation syndrome’, the symptoms of which include anxiety, depression, anger,
cognitive disturbances, perceptual distortions, paranoia, psychosis, self-harm and suicide, and can
destroy a person’s personality.
312
311
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 24th
General Report of the CPT: 1 August 2013-31 July 2014, Strasbourg, 2014.
312
Grassian S, ‘Psychiatric effects of solitary connement’, Journal of Law and Policy, Vol. 22, 2006, pp. 325-383
(Psychiatric effects of solitary connement); Craig Haney, ‘Mental health issues in long-term solitary and “supermax”
connement’, Crime & Delinquency, Vol. 49, No. 1, 2003, pp. 124-156; Sharon Shalev, A sourcebook on solitary
connement, Mannheim Centre for Criminology, London School of Economics, 2008 (A sourcebook on solitary
connement); UN General Assembly, 66th Session, Interim report of the Special Rapporteur of the Human Rights
Council on torture and other cruel, inhuman or degrading treatment or punishment, 5 August 2011, A/66/268 (Special
Rapporteur on Torture report 2011).
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The experts recalled that isolation and solitary connement constitute a high-risk situation
for human rights abuse.
313
It has also been found that placement in segregation or solitary
connement can increase the risk of suicide.
314
Furthermore, it was emphasised that solitary
connement/isolation is typically linked with limitations in access to family visits, work, educational,
recreational, sports and other activities, which exacerbate its negative impact.
Therefore, a signicant body of international law and standards has developed requiring
restrictions of the use of solitary connement, which the review of the Standard Minimum Rules
incorporated into the Nelson Mandela Rules.
315
In introducing this topic, the Essex group noted that the new provisions encapsulate absolute
prohibitions of the practice of solitary connement, but also further limitations. First and foremost,
it should be imposed only ‘in exceptional cases as a last resort, for as short a time as possible and
subject to independent review, and only pursuant to the authorization by a competent authority’.
316
The experts stressed that prohibitions and limitations apply regardless of the purpose of the
practice, i.e. whether applied as a disciplinary sanction, or citing safety and security reasons or the
risk of interference with the course of justice pre-charge and/or pre-trial.
It was emphasised that the Rules apply irrespective of whether solitary connement is imposed by
the prison administration or as part of a judicially imposed sentence or disciplinary measure.
317
This
means, among other things, that neither a prison administration nor a court may impose solitary
connement for more than 15 days.
The Essex group noted guidance on solitary connement provided by the CPT in its 21st General
Report (2011),
318
the Special Rapporteur on Torture’s report on solitary connement (2013),
319
and
the Sourcebook on Solitary Connement.
320
The participants also took note of a chapter in the UNOPS Technical Guidance for Prison Planning,
which compiles minimum requirements with regard to ‘isolation cells’, referencing the Nelson
Mandela Rules and other international standards. The Manual points out that isolation cells must
not be considered part of the overall prison capacity. Using an example, the Manual notes that a
prison ‘with regular housing units for 490 prisoners and 10 isolation cells can accommodate 490
313
Penal Reform International/Association for the Prevention of Torture, Balancing security and dignity in prisons: a
framework for preventive monitoring: 2nd edition, 2016, p. 14 (Balancing security and dignity 2nd edition).
314
WHO/International Association for Suicide Prevention, Preventing Suicide in Jails and Prisons, Geneva, 2007, p.16.
315
See, for example, Principle 7 of the Basic Principles for the Treatment of Prisoners 1990; the Human Rights
Committee, 44th Session, General Comment No. 20: Article 7: Prohibition of torture, or other cruel, inhuman or
degrading treatment or punishment, 30 September 1992; International Psychological Trauma Symposium, Istanbul
Statement on the use and effects of solitary connement, Istanbul, 9 December 2007 (Istanbul Statement on soli-
tary connement); Rule 22 of the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for
Women Offenders; Rule 67 of the UN Rules for the Protection of Juveniles Deprived of their Liberty; European Prison
Rules, Rule 60(5); Principle XXII(3) of the Principles and Best Practices on the Protection of Persons Deprived of
Liberty in the Americas. The European Court of Human Rights has also recognised that ‘complete sensory isolation,
coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which
cannot be justied by the requirements of security or any other reason’ (Ilaşcu and others v. Moldova and Russia,
Application No. 48787/99, European Court of Human Rights (2004), para. 432).
316
Rule 45 of the Nelson Mandela Rules.
317
Special Rapporteur on Torture report 2013, A/68/295, para. 61.
318
CPT 21st General Report, [CPT/Inf (2011], para. 53 onwards.
319
Special Rapporteur on Torture report 2011, A/66/268.
320
A sourcebook on solitary connement.
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and not 500 prisoners’. The participants noted guidance on operational and security considerations
in the Manual.
321
Absolute prohibitions
The Essex group recalled absolute prohibitions of the use of solitary connement, namely if it is:
• indenite
• prolonged
• imposed on juveniles
322
• imposed on pregnant women, women with infants and breastfeeding mothers in prison
323
• imposed on ‘prisoners with mental or physical disabilities when their conditions would be
exacerbated by such measures’
• applied by virtue of a prisoner’s sentence, as is the case in some countries, for example for
prisoners on death row or persons serving a life sentence
324
• used as coercion intended to intimidate, to elicit cooperation or extract a confession within
the justice system.
325
The participants recalled the UN Special Rapporteur on Torture’s report on solitary connement,
calling for a ban on prolonged and indenite
solitary
connement as incompatible with the
pr
ohibition
of torture and other ill-treatment
326
and as a
harsh
measure that is contrary to
rehabilitation, the aim of the penitentiary system.
327
The experts claried that the term ‘indenite solitary connement’ (Rule 43(a)) means that the
person concerned does not know when this connement will end.
They looked at the denition of ‘solitary connement’ in Rule 44 as ‘the connement of prisoners
for 22 hours or more a day without meaningful human contact’.
The Essex group discussed elements that help determine what constitutes ‘meaningful human
contact’ referred to in Rule 44, using the rationale of the provision and relevant documents from
international human rights bodies.
328
The term has been used to describe the amount and quality of social interaction and psychological
stimulation which human beings require for their mental health and well-being. Such interaction
321
United Nations Ofce for Project Services (UNOPS), Technical Guidance for Prison Planning: Technical and oper-
ational considerations based on the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules), 2016, p. 111 onwards.
322
Rule 67 of the UN Rules for the Protection of Juveniles Deprived of their Liberty.
323
Rule 22 of the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders
(the Bangkok Rules).
324
Rule 45 of the Nelson Mandela Rules. This has been emphasised also by the Special Rapporteur on Torture, in e.g.
Special Rapporteur on Torture report 2013, A/68/295, para. 61.
325
Article 14(3)(g) of the International Convention on Civil and Political Rights.
326
Special Rapporteur on Torture report 2011, A/66/268.
The European
Committee for the
Prevention
of
Torture (CPT)
has
made
comparable recommendations: CPT
21st
General
report, 1 August
2010–July
2011,
November
2011.
327
Special Rapporteur on Torture report 2011, A/RES/65/205, para. 79.
328
The concept of ‘meaningful human contact’ has been borrowed from the Istanbul Statement on solitary connement
and from the UN Committee against Torture. See CAT SMR revision observations, para. 34. The Istanbul Statement
on solitary connement states ‘The available stimuli and the occasional social contacts are seldom freely chosen, are
generally monotonous, and are often not empathetic’. See also CAT SMR revision observations, para. 34.
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requires the human contact to be face to face and direct (without physical barriers) and more than
eeting or incidental, enabling empathetic interpersonal communication. Contact must not be
limited to those interactions determined by prison routines, the course of (criminal) investigations or
medical necessity.
Rule 5 provides another indicator for interpretation, stipulating as a general principle that ‘[t]he
prison regime should seek to minimize any differences between prison life and life at liberty’.
The experts stressed that the provision needs to be interpreted in good faith and conscious of its
intent and purpose. They emphasised that, therefore, it does not constitute ‘meaningful human
contact’ if prison staff deliver a food tray, mail or medication to the cell door or if prisoners are
able to shout at each other through cell walls or vents. In order for the rationale of the Rule to
be met, the contact needs to provide the stimuli necessary for human well-being, which implies
an empathetic exchange and sustained, social interaction. Meaningful human contact is direct
rather than mediated, continuous rather than abrupt, and must involve genuine dialogue. It could
be provided by prison or external staff, individual prisoners, family, friends or others – or by a
combination of these.
The Essex group recalled that the absolute prohibition of solitary connement had already been
incorporated into standards for juveniles,
329
and for pregnant women, women with infants and
breastfeeding mothers in prison.
330
Rule 45(2) reiterates the prohibition of solitary connement in
other UN standards, referring to the Bangkok Rules and the Beijing Rules.
For children, segregation has been found to be particularly traumatic,
331
and the imposition of
solitary connement on children, of any duration, has been considered to constitute cruel, inhuman
or degrading treatment or punishment or even torture.
332
The Essex group noted a Council of
Europe Recommendation, whereby young adults under the age of 21 would be treated in a way
comparable to the treatment of juveniles considering their level of maturity and responsibility for
their actions.
333
The prohibition of solitary connement enshrined in the Bangkok Rules is based on evidence that
the practice has a particularly harmful impact on the mental well-being of women prisoners, due to
women’s strong need for close contact with their children, as well as the health of pregnant women
and women who have recently given birth, who need to receive appropriate pre- and post-natal
care in suitable surroundings.
334
329
Rule 67 of the UN Rules for the Protection of Juveniles Deprived of their Liberty.
330
Rule 22 of the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders
(the Bangkok Rules). This is reected also in Principle 22(3) of the Principles and Best Practices on the Protection of
Persons Deprived of Liberty in the Americas which states that ‘It shall be strictly forbidden to impose solitary conne-
ment to pregnant women; mothers who are living with their children in the place of deprivation of liberty; and children
deprived of liberty’.
331
Council of Europe, Commentary to the European Rules for juvenile offenders subject to sanctions or measures,
CM(2008)128 addendum 1, p. 34.
332
UN Human Rights Council, 28th Session, Report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, Juan E. Mendez, 5 March 2015, A/HRC/28/68, paras. 44, 86(d). Furthermore,
research has indicated that solitary connement, as a disciplinary measure, does not reduce violence among juvenile
offenders detained in the youth prison. Special Rapporteur on Torture report 2011, A/66/268, with reference to Robert
Wildeboer, ‘The Impact of Solitary Connement in a Youth Prison’, Inside and Out, Chicago, 2010.
333
Council of Europe, Council of Europe Recommendation Rec(2003)20 concerning new ways of dealing with juvenile
delinquency and the role of juvenile justice, Rule 11.
334
Penal Reform International and Thailand Institute of Justice, Guidance Document: United Nations Rules on the Treat-
ment of Women Prisoners and Non-Custodial Measures for Women Offenders (The Bangkok Rules), London and
Bangkok, October 2013, p. 66.
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The Essex group noted that there are also prohibited purposes of solitary connement, namely if
the measure were used ‘intentionally for purposes such as punishment, intimidation, coercion or
obtaining information or a confession, or for any reason based on discrimination’.
335
Prolonged solitary connement
The Essex group discussed the absolute prohibition in Rule 43(1b) of prolonged solitary
connement, reiterating that the practice in itself amounts to torture or other cruel, inhuman or
degrading treatment, as established by the UN Special Rapporteur on Torture.
336
Prolonged solitary connement is dened as solitary connement in excess of 15 consecutive days
(Rule 44).
The Essex group stressed that the prohibition applies to periods of isolation imposed in close
succession, and pointed to the recommendation of the CAT that there should be a prohibition on
sequential disciplinary sentences resulting in an uninterrupted period of solitary connement in
excess of the maximum period.
337
The Special Rapporteur on Torture has also stressed that the prohibition should include ‘frequently
renewed measures that amount to prolonged solitary connement’.
338
The Essex group pointed out that in the case of a transfer from one prison to another the maximum
time limit still applies.
Furthermore, the participants pointed to the effect of ‘prolonged solitary connement’ based on ‘[a]
dvancements in new technologies’, which ‘have made it possible to achieve indirect supervision
and keep individuals under close surveillance with almost no human interaction’.
339
Mental and physical disabilities
The Essex group discussed Rule 45 (2) which prohibits the use of solitary connement of
‘prisoners with mental or physical disabilities when their conditions would be exacerbated by such
measures’.
With regard to prisoners with mental disabilities the experts referred to the Special Rapporteur on
Torture who has drawn attention to the fact that solitary connement often severely exacerbates
mental disabilities, and that ‘[p]risoners with mental health issues deteriorate dramatically in
isolation’.
340
The Rapporteur has therefore held that the imposition of solitary connement, ‘of any duration, on
persons with mental disabilities is cruel, inhuman or degrading treatment and violates Article 7 of
the Covenant and Article 16 of the Convention [against Torture]’. He has therefore called for the
abolition of the use of solitary connement for persons with mental disabilities.
341
335
Special Rapporteur on Torture report 2013, A/68/295, para. 60.
336
Special Rapporteur on Torture report 2011, A/66/268, e. g. paras. 21, 58 and 81.
337
CAT SMR revision observations, para. 33.
338
Special Rapporteur on Torture report 2013, A/68/295, para.61.
339
Special Rapporteur on Torture report 2011, A/66/268, para. 55.
340
Special Rapporteur on Torture report 2011, A/66/268, para. 68, quoting A Sourcebook on Solitary Connement, pp.
10, 26; and Psychiatric effects of solitary connement.
341
Special Rapporteur on Torture report 2011A/66/268, paras. 78, 81 and 86.
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Calls for a prohibition of solitary connement ‘in the case of prisoners with mental illness’ and of
‘persons with mental disabilities’ have been made by the SPT,
342
and also in the Istanbul Statement
on the Use and Effects of Solitary Connement 2007.
343
Further limitations on use of solitary connement
Where no absolute prohibition applies, solitary connement should still only be imposed ‘in
exceptional cases as a last resort, for as short a time as possible and subject to independent
review, and only pursuant to the authorization by a competent authority’ (Rule 45).
344
This has been emphasised also by the Special Rapporteur on Torture and the CAT.
345
The experts recalled the commitment of the Basic Principles for the Treatment of Prisoners
‘towards the abolition of solitary connement or the reduction of its use’.
346
The Istanbul Statement
on the Use and Effects of Solitary Connement, the European Prison Rules
347
and the Principles
and Best Practices on the Protection of Persons Deprived of Liberty in the Americas all reiterate
that solitary connement should be used only in very exceptional cases, as a last resort and for
as short a time as possible, ‘when it is evident that it is necessary to ensure legitimate interests
relating to the institution’s internal security, and to protect fundamental rights, such as the right to
life and integrity of persons deprived of liberty or the personnel’.
348
The CPT added guidance by stating that, ‘[g]iven that solitary connement is a serious restriction of
a prisoner’s rights which involves inherent risks to the prisoner, the level of actual or potential harm
must be at least equally serious and uniquely capable of being addressed by this means.’
349
Procedural safeguards
The CPT has pointed out that clear disciplinary procedures need to be both formally established
and applied in practice, and that any grey zones in this area involve the risk of seeing unofcial
(and uncontrolled) systems developing.
350
The Essex group noted that under the Rules, solitary connement must be ‘subject to independent
review, and only pursuant to the authorization by a competent authority’. The participants recalled
that this principle has been enshrined in Rule 41(4) for disciplinary sanctions in general, but is
reiterated in Rule 45(1), clarifying that it applies to solitary connement regardless of the reason for
which this measure is imposed.
351
342
SPT, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment to the Republic of Paraguay, 7 June 2010, CAT/OP/PRY/1, para. 185.
343
Istanbul Statement on the use and effects of solitary connement, adopted on 9 December 2007 at the International
Psychological Trauma Symposium, Istanbul.
344
Rule 45 Nelson Mandela Rules.
345
Special Rapporteur on Torture report 2013, A/68/295, para. 60; CAT SMR revision observations, CAT/C/51/4, para.
32.
346
Principle 7 of the UN Basic Principles for the Treatment of Prisoners 1990.
347
European Prison Rules 2006, Rule 60(5): ‘Solitary connement shall be imposed as a punishment only in exceptional
cases and for a specied period of time, which shall be as short as possible’.
348
Principle XXII (3) of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas.
349
CPT 21st General Report.
350
CPT 2nd General Report, [CPT/Inf (92) 3], para. 55.
351
Principle 22(3) of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas
also states that ‘In all cases, the disposition of solitary connement shall be authorized by the competent authority and
shall be subject to judicial control’.
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Referring to their discussions at the rst expert meeting, the Essex group stressed that such
reviews need to be substantive and comprehensive assessments, rather than a brief schematic
review.
352
Reducing the negative impact of sanctions and restrictions
Compensatory measures
The Essex group drew attention to Rule 38(2) which calls on prison administrations to establish
‘compensatory measures’ for prisoners separated from the general prison population in order to
‘alleviate the potential detrimental effects of their connement on them and on their community
following their release from prison.’
353
With regard to solitary connement, the European Court of Human Rights has also called on states
to ‘take steps to reduce the negative impact’.
354
This means that prison administrations should put effort into raising the level of meaningful social
contacts with others,
355
for example by
facilitating
more visits and access to social activities with
other
prisoners, by arranging
talks
with social workers, psychologists, psychiatrists, volunteers
from
NGOs, from the local community, or religious
prison
personnel, if so wished by the prisoner.
Regular contact with family members through visits,
letters, p
hone calls or emails are crucial
for detainees. The provision of meaningful in-cell and out-of-
cell
activities, such as educational,
recreational
and/
or vocational programmes, are equally
important
to prevent infringements of
prisoners’ dignity
and
health, and will have a positive effect on levels
of
violence.
356
Monitoring/inspections
Given the particular risk of torture and other ill-treatment in solitary connement, the Essex group
pointed to the particular attention that monitoring bodies should pay to prisoners in isolation.
The participants referred to guidance in a thematic paper published by PRI and APT,
recommending that:
‘Monitors should ensure that their visits include a thorough examination of the use of isolation,
segregation and solitary connement, including its frequency and length. They should closely
review the classication systems, and decisions to isolate prisoners, including whether these
are based on an individual risk assessment. The use of isolation for ‘protection’ of vulnerable
groups should be examined carefully.
Monitoring bodies should also pay particular attention to the conditions in segregation units and
their impact on the mental well-being of the prisoners, examining in particular the possibility for
detainees to maintain meaningful human contact. Furthermore, monitoring bodies should inquire
whether segregation is applied in a discriminatory way towards certain groups or individuals.’
357
352
University of Essex/ Penal Reform International, Summary of Expert meeting at the University of Essex on the
Standard Minimum Rules for the Treatment of Prisoners Review, 21 November 2012, UN-Doc. UNODC/CCPCJ/
EG.6/2012/NGO/1, pp. 20-21 (Essex 1).
353
Rule 38(2) of the Nelson Mandela Rules.
354
Mathew v. Netherlands, Application No. 24919/03, para. 202.
355
Istanbul Statement on solitary connement, p. 4.
356
Balancing security and dignity 2nd edition, p. 15.
357
Balancing security and dignity 2nd edition, p. 15.
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The experts added that prison inspectors (Rules 83-85) need to have access to the prisoner’s
le, including to information about the use of disciplinary procedures, the records of sanctions
and restrictive measures imposed. Their assessment should include recommendations on the
proportionality of disciplinary sanctions.
358
The CAT has stressed that ‘[q]ualied medical personnel should regularly monitor every detainee’s
physical and mental condition after solitary connement has been imposed and should also
provide such medical records to the detainees and their legal counsel upon request’.
359
Record-keeping
The Essex group emphasised the importance of record-keeping for disciplinary procedures and
sanctions as a part of due process. This is supported by the Rules on prisoner les (Rules 8 (c, e)
and 39 (2)), which call for the recording of information ‘related to behaviour and discipline’ and ‘the
imposition of disciplinary sanctions’.
360
Rule 19 of Beijing Rules details that ‘[a]ll reports, including (…) records of disciplinary proceedings,
and all other documents relating to the form, content and details of treatment, should be placed in
a condential individual le, which should be kept up to date.’
More detailed guidance with regard to the documentation of solitary connement has been
provided by the Special Rapporteur on Torture, who stated, that:
‘All assessments and decisions taken with respect to the imposition of solitary connement must
be clearly documented and readily available to the detained persons and their legal counsel.
This includes the identity and title of the authority imposing solitary connement, the source of
his or her legal attributes to impose it, a statement of underlying justication for its imposition,
its duration, the reasons for which solitary connement is determined to be appropriate in
accordance with the detained person’s mental and physical health, the reasons for which
solitary connement is determined to be proportional to the infraction, reports from regular
review of the justication for solitary connement, and medical assessments of the detained
person’s mental and physical health.’
361
Instruments of restraint
Drawing on the second ‘Essex paper’ and referring to discussions on the use of force (See Chapter
6, Incident management) the experts noted that international law recognises certain legitimate
reasons for using force or restraints such as to protect prisoners or staff, to prevent escape, to
prevent self-harm and suicide and in self-defence.
However, the experts emphasised that international law only permits the use of force and restraints
in very narrow and exceptional circumstances, in line with the principles of legality, necessity and
proportionality and when all other methods have been exhausted and no alternatives remain. The
358
Rule 84 (1a) of the Nelson Mandela Rules according to which inspectors shall have the authority: ‘To access all infor-
mation on the numbers of prisoners and places and locations of detention, as well as all information relevant to the
treatment of prisoners, including their records and conditions of detention’.
359
CAT SMR revision observations, CAT/C/51/4, para. 34.
360
See also Rule 70 of the Beijing Rules which states that ‘Complete records should be kept of all disciplinary
proceedings’.
361
Special Rapporteur on Torture report 2011A/66/268, para. 93.
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use of force and of restraints are ‘clearly high risk situations insofar as the possible ill-treatment of
prisoners is concerned, and as such call for specic safeguards’
362
– as the CPT has diagnosed.
The Essex group discussed the update to provisions on the use of instruments of restraint, and
noted overarching principles
363
which apply to the use of force, of arms and of instruments of
restraints, measures that are often used in combination by staff responding to incidents. (See
Chapter 6, Incident Management – Use of force and arms):
• prohibition of certain methods/instruments
• legality
• necessity
• proportionality
• use in the least painful way, not causing humiliation or degradation.
The Essex group recalled the prohibition of the use of restraints that are ‘inherently degrading or
painful’ (Rule 47(1)), which derives from the general prohibition of torture and other cruel, inhuman
or degrading treatment or punishment. They emphasised that such cases foreclose the invocation
of considerations of necessity or proportionality to ever justify their use.
The experts noted the explicit prohibition of chains and irons as illustrative examples of instruments
of restraint which have been considered inherently degrading and painful. They emphasised that
the absence of a longer list of prohibited items merely reects reasons of practicality. They referred
to their second expert meeting, where they had noted the ‘challenges involved in updating the
lists of prohibited instruments and methods of restraint’ as terminology varies between states
and technology is always evolving with the risk that the list becomes quickly outdated and under-
inclusive.
364
The Essex group stressed that the term ‘instruments of restraint’ should be interpreted to include
all forms of restraint, including chemical restraints, and noted the prohibition in the Beijing Rules of
administering medicines as a means of restraint.
365
The experts recalled the prohibition of instruments of restraint being used on women during labour,
during childbirth and immediately after childbirth, enshrined in Rule 48(2) as well as in Rule 24 of
the Bangkok Rules. They recommended this principle to be expanded to late pregnancy and noted
that the prohibition has been introduced to account for the fact that the use of restraints on women
in such situations raises concerns about degrading treatment as well as medical complications.
They noted that women in labour need to be mobile to assume various positions and so they can
be moved to an operating room quickly if necessary.
366
362
CPT 2nd General Report, CPT/Inf (92) 3, para. 53.
363
Balancing security and dignity 2nd edition.
364
Essex 2, para. 48.
365
Rule 55 of the UN Rules for the Protection of Juveniles Deprived of their Liberty states that medicines ‘must not be
administered with a view to eliciting information or a confession, as a punishment or as a means of restraint’.
366
See concerns detailed by Dr Garcia, obstetrician and gynaecologist at Northwestern University’s Prentice Women’s
Hospital: ‘Having the woman in shackles compromises the ability to manipulate her legs into the proper position for
necessary treatment. The mother and baby’s health could be compromised if there were complications during delivery,
such as haemorrhage or decrease in fetal heart tones. If there were a need for a C-section (caesarean delivery), the
mother needs to be moved to an operating room immediately, and a delay of even ve minutes could result in perma-
nent brain damage for the baby’. (Statement provided to Amnesty International by Chicago Legal Aid to Incarcerated
Mothers, December 1998, in Amnesty International, Not part of my sentence: Violations of the Human Rights of
Women in Custody, March 1999, AI Index: AMR 51/01/99); see also American College of Obstetricians and Gynaecol-
ogists, Committee Opinion Number 511, Reafrmed 2016, November 2011.
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Drawing on the rst ‘Essex paper’ the experts recalled that body-worn electro-shock belts,
367
which by their nature inict severe physical pain and mental suffering and due to their humiliating
and degrading effect, have been increasingly condemned and their use nowadays has been
abandoned in most states.
368
The CAT has recommended the abolition of electro-shock stun belts
and restraint chairs as methods of restraining those in custody, noting that their use often violates
Article 16 of the Convention.
369
The CPT opposes the ‘use of electric stun belts for controlling
the movement of detained persons, whether inside or outside places of deprivation of liberty.’
370
The European Union has gone as far as prohibiting the export of electric-shock devices which
are intended to be worn on the body by a restrained individual as goods ‘which have no practical
use other than for the purpose of capital punishment or for the purpose of torture and other cruel,
inhuman or degrading treatment or punishment’.
371
The Essex group stressed the requirements of legality (prescription by law), necessity and
proportionality: these are invoked in Rules 47(2) and 48, and provided for in the Code of Conduct
for Law Enforcement Ofcials
372
and the Basic Principles on the Use of Force and Firearms by Law
Enforcement Ofcials,
373
which continue to supplement the revised SMR. These principles have
also been enshrined in the Beijing Rules.
374
The Essex group noted that Rule 47(2) limits the cases of lawful use of restraints to:
a) precaution against escape during a transfer (note restrictions before courts etc)
b) instances where other methods of control fail to prevent self-injury, injury to others or damage
to property (note restrictions).
The experts recalled that health-care personnel must not play any role in the application of
sanctions or restrictive measures, including instruments of restraint, and that therefore, in the
course of the SMR review, their use on ‘medical grounds’ has been deleted.
367
Body-worn electro-shock devices (for example belts, sleeves, cuffs) encircle various parts of the subject’s body
(usually the waist, but variants have been developed to t on legs or arms) and deliver an electric shock when a
remote control device is activated.
368
Essex 1, pp. 25, 26.
369
UN Committee against Torture, for example, 23rd and 24th Sessions, Report of the Committee against Torture:
Consideration of reports submitted by States Parties under article 19 of the Convention: M. United States of America,
May 2000, A/55/44, para. 180(c).
370
CPT, 20th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treat-
ment or Punishment [CPT/Inf(2010)28], para. 74; European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT), CPT Standards: “Substantive” sections of the CPT’s General Reports,
2015, CPT/Inf/E (2002) 1 – Rev. 2015.
371
European Union, Council Regulation (EC) No. 1236/2005 of 27 June 2005 concerning trade in certain goods which
could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, Article 3
referring to Annex II, which lists in para. 2.1 ‘Electric-shock devices which are intended to be worn on the body by a
restrained individual, such as belts, sleeves and cuffs, designed for restraining human beings by the administration of
electric shocks having a no-load voltage exceeding 10 000 V’.
372
Article 3 of the Code states that ‘Law enforcement ofcials may use force only when strictly necessary and to the
extent required for the performance of their duty’. The Commentary elaborates on the exceptionality and proportion-
ality, stating that ‘In no case should this provision be interpreted to authorize the use of force which is disproportionate
to the legitimate objective to be achieved’.
373
In accordance with the commentary to article 1 of the Code of Conduct for Law Enforcement Ofcials, the term ‘law
enforcement ofcials’ includes all ofcers of the law, whether appointed or elected, who exercise police powers, espe-
cially the powers of arrest or detention.
374
Rule 64 of the UN Rules for the Protection of Juveniles Deprived of their Liberty.
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The Essex group reiterated the recommendation of their second meeting, that the principle of
legality requires detailed procedures in national law under regular review, laying out the types of
restraints that may be used, the circumstances in which each type may be applied, the members of
staff who are authorised to take respective decisions and which clarify the recording requirements
(see also Rule 8(c, e)).
375
Recalling the negotiations on this provision, the Essex group noted that Rule 48(1a) encapsulates
the principle of necessity in that it limits the use of instruments of restraint to situations where ‘no
lesser form of control would be effective to address the risks posed by unrestricted movement’.
The experts recalled guidance provided by the Basic Principles on the Use of Force and Firearms
by Law Enforcement Ofcials,
which uses the formulation ‘if other means remain ineffective or
without promise of achieving the intended result’, and only where use of force is ‘unavoidable’.
They also highlighted the relevance, in this regard, of Rule 49, which requires the provision
of ‘training in the use of control techniques that would obviate the need for the imposition of
instruments of restraint or reduce their intrusiveness’.
The Essex group referred to Rule 48(1b) which captures the principle of proportionality in more
practical terms, i.e. the method of restraint used must be the ‘least intrusive method that is
necessary and reasonably available to control the prisoner’s movement, based on the level and
nature of the risks posed’.
It was further noted that the principles of necessity and proportionality imply an assessment on
an individual, case-to-case basis and a regular review. This is captured in Rule 48(1c), which
determines that instruments of restraint shall be ‘imposed only for the time period required’, i.e.
they have to be ‘removed as soon as possible after the risks posed by unrestricted movement are
no longer present’.
Furthermore, it was emphasised that even if the use of instruments of restraint is legal, necessary
and proportionate it must be applied in the least painful way. The Beijing Rules, for example, reect
this by stating that their use ‘should not cause humiliation and degradation’. They also add the
requirement that ‘the director should at once consult medical and other relevant personnel and
report to the higher administrative authority’.
376
Rule 47 (2b) requires not only that the physician or another qualied health-care professional be
alerted to the situation, but also that they personally check on the individual concerned.
It was emphasised that in order to be in a position to apply these principles prison staff need to
be provided with appropriate practical training, as is enshrined in Rule 49 and Rule 76(1c). (See
Chapter 2, Prison Management)
Role of medical personnel
The Essex group highlighted Rule 46, which is dedicated to the role of health-care personnel in the
context of disciplinary sanctions and other restrictive measures. The experts stressed that these
provisions apply to both (disciplinary) sanctions and ‘other restrictive measures’ and irrespective of
the type of sanction or restriction, including instruments of restraint.
375
Essex 2, p. 13.
376
Rule 64 of the UN Rules for the Protection of Juveniles Deprived of their Liberty.
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The experts noted that the provision has been informed by the UN Principles of Medical Ethics
relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and
Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and
in particular Principle 5 which states that:
‘[i]t is a contravention of medical ethics for health personnel, particularly physicians, to
participate in any procedure for restraining a prisoner or detainee unless such a procedure is
determined in accordance with purely medical criteria as being necessary for the protection
of the physical or mental health or the safety of the prisoner or detainee himself, of his fellow
prisoners or detainees, or of his guardians, and presents no hazard to his physical or mental
health.’
377
The Essex group pointed out that the Nelson Mandela Rules have sought to reconcile the tension
between this principle and the specic duty of care towards prisoners under such measures. While
required to pay ‘particular attention to the health of prisoners held under any form of involuntary
separation, including by visiting such prisoners on a daily basis’ they ‘shall not have any role in the
imposition of disciplinary sanctions or other restrictive measures’.
At the same time, health-care personnel should report adverse effects of such measures to the
director of the facility, without delay, and have the authority to review and recommend changes
‘to ensure that such separation does not exacerbate the medical condition or mental or physical
disability of the prisoner’.
378
à See Chapter 4, Health-care – medical ethics
377
UN Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of
Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted
by UN General Assembly resolution 37/194 of 18 December 1982.
378
Balancing security and dignity, 2nd edition, p. 15, with reference to Rule 46 of the Mandela Rules.
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Chapter 6
379
Incident management
Issues/rules covered:
• Safety and security (Rule 1 last sentence)
• Complaints (Rule 56 and 57(1))
• Protection against reprisals (Rule 57(2) and (3))
• Cases of death or serious injury (Rules 68, 69, 70, 72)
• Investigations (Rule 71)
• Use of force (Rule 82, Basic Principles on Use of Force and Firearms)
Safety and security
The last sentence of Rule 1 establishes the general principle that safety and security must be
ensured at all times, as well as respect for prisoners’ inherent dignity and value as human beings.
It calls for a balance between the two principles.
The Essex group afrmed that personal safety in prisons underpins the SMR as a whole and is
essential to upholding human dignity. The duty to maintain safety is inextricably linked to other
provisions such as: the use of force and restraints, searches, the prevention of torture and other
cruel, inhuman or degrading treatment or punishment (other ill-treatment), and the protection
of prisoners at risk of discrimination or abuse. It is well documented that a lack of safety and
security in prisons can lead to grave threats to the life and dignity of prisoners.
380
A loss of safety
undermines dignity, but measures intended to maintain safety must also uphold the right to dignity.
Both the UN Special Rapporteur on Torture and the UN Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions have pointed out that ‘the State assumes a heightened duty of
protection by severely limiting an inmate’s freedom of movement and capacity for self-defence’.
381
The Inter-American Commission on Human Rights has also maintained that the state has particular
obligations to protect the dignity of prisoners, their life, health, personal integrity and other rights.
382
379
This chapter was authored by Andrea Huber, Penal Reform International, with the support of Sharon Critoph.
380
Open-Ended Intergovernmental Expert Group on the Standard Minimum Rules for the Treatment of Prisoners,
Second Report of Essex Expert Group on the Review of the Standard Minimum Rules for the Treatment of Prisoners,
prepared by Penal Reform International/Essex University, 20 March 2014, UNODC/CCPCJ/EG.6/2014/NGO.7, para.
5 (Essex 2).
381
UN General Assembly, 61st Session, Extrajudicial, summary or arbitrary executions: Note by the Secretary-General, 5
September 2006, A/61/311, para.51.
382
Inter-American Commission on Human Rights, Report on the Human Rights of Persons Deprived of Liberty in the
Americas, 31 December 2011, OEA/Ser.L/V/II.Doc 64, para 293 (IACHR Report on Persons Deprived of Liberty)
(citing Report No. 118/10, Case 12.680, Merits, Rafael Arturo Pacheco Teruel et al., Honduras, October 22, 2010,
para. 63).
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Prison authorities therefore need to act with due diligence in both the prevention of, and response
to risks. The due diligence principle implies periodic assessments of risks and safeguards. Safety
and security should inherently be key performance targets in a prison system.
The SMR acknowledge the importance of the safety of prison staff, and recognise it also as a right.
If prison staff are not safe, it is difcult for them to provide for the safety of prisoners.
Scope/meaning of safety and security
There may not be a clear differentiation between the terms ‘safety’ and ‘security’ (used in Rule 1).
Prison security may be used more often to describe infrastructural aspects such as the means by
which escapes are prevented, while safety refers more frequently to the physical safety of individu-
als in prison.
The Essex group emphasised that the concept of safety and security is not limited to the
external perimeters of the prison, but encompasses a number of components. It requires prison
administrations to take proactive measures to prevent and protect prisoners and staff from risks
to their safety and security such as inter-prisoner violence, self-harm and suicide and risks arising
from the prison estate and its management, such as res and oods.
383
The principle applies to prisoners as well as prison staff, visitors and any other persons within the
prison walls. It entails:
the protection of:
• prisoners
• staff
• visitors
• service providers in prisons such as healthcare personnel, social workers, etc
• children staying in prison with their parent;
and protection from:
• abuse of prisoners by staff and vice versa
• inter-prisoner violence
• self-harm and suicide
• escape (security of external perimeters)
• illegal items such as harmful drugs, weapons, etc.
• infrastructural risks including re safety
• natural disasters such as oods, hurricanes, mudslides, etc.
383
IACHR Report on Persons Deprived of Liberty, OEA/Ser.L/V/II.Doc 64, para. 51 (citing the decision of the Inter-Amer-
ican Court of Human Rights in Case of Neira Alegria et al v Peru, judgment of 19 January 1995, Series C No. 20,
para. 60, which found that ‘since the State is the institution responsible for detention establishments, it is the guarantor
of these rights of the prisoners’).
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The experts discussed the signicance of the wording ‘at all times’ in Rule 1 and noted that it
means 24 hours (day and night), from admission to prison through to release, including during any
transfer of prisoners. For prison staff, the principle applies during the entire time of their duties.
The experts emphasised that the protection of prisoners from inter-prisoner violence is a key
component of ensuring safety in prison and a human rights obligation. As a report of the Secretary-
General has noted, acquiescence in inter-prisoner violence is not simply a breach of professional
responsibilities but amounts to consent or acquiescence in torture or other ill-treatment’.
384
The
duty to prevent inter-prisoner violence has also been recognised as a component inherent in the
safety of prisoners in the Bangkok Rules
385
and the European Prison Rules.
386
Inter-prisoner violence involves a wide range of phenomena from subtle forms of harassment to
unconcealed intimidation and serious physical attacks.
387
In a prison environment where verbal
abuse, harassment on racist or tribal grounds, theft, or exploitation are widespread, prisoners
will be tempted to use force to defend their interests. The protection of prisoners from all forms of
victimisation is therefore in the vital interest of prison staff.
It was stressed that safety and security is jeopardised in overcrowded prisons, alongside its
negative impact on the conditions of detention overall. The Inter-American Commission on Human
Rights has described the correlation, stating that ‘the general context and the causes that give rise
to the acts of violence are fundamentally the same: a general situation of inhumane conditions
of detention characterized mainly by considerable overcrowding’.
388
A report of the UN Secretary
General concluded that ‘overcrowded cells in prisons foster the development of an offender
subculture, which is difcult for prison staff to control’.
389
à See Chapter 4, Healthcare – suicide prevention and prevention of self-harm
à See Chapter 3, Contact with the outside world – transfers/transport
Measures to ensure safety and security
The Essex group noted that prison security is usually associated with physical means, particularly
walls, bars, watch towers and alarm systems, but in fact encompasses a whole range of measures,
including:
• architectural aspects
384
UN General Assembly, 68th Session, Human rights in the administration of justice: analysis of the international legal
and institutional framework for the protection of all persons deprived of their liberty: Report of the Secretary-Gen-
eral, 5 August 2013, A/68/261, para 49 (Human rights in the administration of justice). Separately, the UN Special
Rapporteur on Torture recalls that inter-prisoner violence may amount to torture or other ill-treatment if the State fails
to act with due diligence to prevent it (in UN Human Rights Council, 13th Session, Report of the Special Rapporteur
on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak: Mission to Kazakhstan,
16 December 2009, A/HRC/13/39/Add.3, para. 28). See also UN General Assembly, 68th Session, Torture and other
cruel, inhuman or degrading treatment or punishment: Note by the Secretary-General, 9 August 2013, A/68/295, para.
48 (Special Rapporteur on Torture report 2013).
385
United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the
Bangkok Rules), 2011, Preliminary observations para.9.
386
European Prison Rules, 2006, Rule 52(2): ‘Procedures shall be in place to ensure the safety of prisoners, prison staff
and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety’.
387
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 11th
General Report on the CPT’s activities covering the period 1 January to 31 December 2000, 3 September 2001, CPT/
Inf (2001) 16, para. 27 (CPT 11th General Report).
388
Inter-American Commission on Human Rights, Report on the Human Rights of Persons Deprived of Liberty in the
Americas, 31 December 2011, OEA/Ser.L/V/II.Doc 64, paras.103-106.
389
Human rights in the administration of justice, para.49.
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• infrastructural safety, alarm systems and evacuation plans in case of res and other
emergencies
• exercise of control
• separation of prisoners
• classication, risk and needs assessments
• dynamic security, early warning systems and conict resolution tools, such as mediation
• periodic safety assessments and security audits.
Architecture and technology
The Essex group did not discuss issues around architecture but referred to specialised literature
such as the Technical Guidance for Prison Planning, published by UNOPS in 2016.
390
Architectural
measures to protect prisons from external attacks have also been provided in a handbook
published by UNODC.
391
Security equipment includes bars, doors and watchtowers, but also technology such as x-rays,
metal detectors, radios, alarm systems, etc. Basic Principle 2 of the Basic Principles on the Use of
Force and Firearms requires that law enforcement, a term that includes prison ofcers, should be
‘equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-
proof means of transportation, in order to decrease the need to use weapons of any kind’.
The experts noted that new technologies have provided new tools, but also prompted new
challenges for prison administrations in terms of safety. For example, drones are being used to
smuggle drugs or phones into prison. New solutions will have to be developed to address such
threats, including edicial measures without jeopardising natural light etc. (See also below on body
cameras.).
Comparative research was noted, according to which ‘unit management’
392
has a positive impact
on security and provides a good setting for rehabilitation and counselling programmes, without
greater spending on buildings or stafng. The concept implies that multi-disciplinary teams deliver
services in each unit, with individual team members being responsible for both security and
prisoner development outcomes.
393
Infrastructural safety
The safety and security principle also includes infrastructural safety, for example, with regard
to the condition of the prison estate (e.g. dilapidated buildings), the risks arising from prisoners’
belongings, re hazards (e.g. smoking or use of unauthorised electrical equipment such as
cooking stoves and non-re resistant/proof mattresses) as well as procedures and evacuation
390
United Nations Ofce for Project Services (UNOPS), Technical Guidance for Prison Planning: Technical and oper-
ational considerations based on the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela
Rules), 2016 (Technical Guidance for Prison Planning).
391
United Nations Ofce on Drugs and Crime (UNODC), Handbook on Dynamic Security and Prison Intelligence, New
York, 2015, pp. 11-12 (Handbook on Dynamic Security); UNODC, Handbook on the Management of High-Risk Pris-
oners, New York, 2016, pp. 64-65.
392
The term refers to a prison that is broken down into units, each of which may contain a number of prisoner accommo-
dation sections and static posts. Multi-disciplinary teams of staff consist of disciplinary ofcials, educationalists, social
workers, psychologists, religious care workers and nurses.
393
Handbook on Dynamic Security, p. 35.
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policies in case of re
394
or natural disaster (e.g. oods, storms, mudslides, etc.).
395
The Inter-
American Commission has emphasised the obligation to maintain safe electrical installations.
396
The Essex group noted that risks from poor infrastructure and an absence of procedures in cases
of emergency tend to be overlooked and expressed their concern over situations where prisoners
have been left in prison in life-threatening situations.
The relevance of prison design was noted as a factor to improve safety in this regard, with the oor
plan of any facility aiding or hindering speedy evacuation, edicial layouts that help prevent re
spreading, the location of re alarms and extinguishing equipment, as well as escape routes, exits
and evacuation areas. The UNOPS Technical Guidance for Prison Planning notes that ‘[w]hen
considering re safety and evacuation for the prison, outdoor yards can provide a contained
space close to accommodation areas where prisoners can be evacuated until the emergency is
resolved’.
397
It was stressed that proper equipment needs to be available to react to emergencies and that
prison personnel must be trained in evacuation procedures and rst aid.
398
This implies evacuation
plans, which need to be included in prison safety audits. Analysing a number of mass casualties
due to res in Latin America, the Inter-American Commission on Human Rights concluded the
main causes were ‘overpopulated prisons in a state of physical disrepair’ and the lack of protocols
to dealing with these situations even though the risks were known to the authorities.
399
The experts discussed that prison administrations may be reluctant to share evacuation plans
with prisoners. However, good practice from the UK was referred to where posters give detailed
information on re drills and evacuation procedures to prisoners.
The experts highlighted that alarm systems must take into account the local context. For example,
they must not rely on electric power if power supply is a problem in the respective country or
region, and alternative systems or a back-up generator must be available in such cases. Examples
of re alarm systems are provided in the UNOPS Technical Guidance.
400
394
Inter-American Commission on Human Rights, Report of the Inter-American Commission on Human Rights on the
Situation of Persons Deprived of their Liberty in Honduras, 18 March 2013, OEA/Ser.L/V/II.147 (IACHR Report
on Honduras). The Commission reported on a number of res resulting in alarming numbers of fatalities amongst
prisoners, e.g. in Argentina, Chile, the Dominican Republic, Uruguay, El Salvador and Panama: see IACHR press
releases 33/05, 55/07, 120/10, 8/05, 68/10, 112/10 and 2/11.
395
For example, a report published by the American Civil Liberties Union documents the lack of emergency planning
at the Orleans Parish Prison which during Hurricane Katrina resulted in thousands of individuals being trapped. See
American Civil Liberties Union, Abandoned & abused: Orleans Parish Prisoners in the Wake of Hurricane Katrina,
Washington DC, August 2006.
396
IACHR Report on Persons Deprived of Liberty, para 293 (citing the Report No. 118/10, Case 12.680, Merits, Rafael
Arturo Pacheco Teruel et al., Honduras, October 22, 2010, para. 63).
397
Technical Guidance for Prison Planning, p. 99.
398
IACHR Report on Persons Deprived of Liberty, para 293 (citing the Report No. 118/10, Case 12.680, Merits, Rafael
Arturo Pacheco Teruel et al., Honduras, October 22, 2010, para. 63).
399
IACHR Report on Persons Deprived of Liberty, para. 292.
400
Technical Guidance for Prison Planning, p. 36.
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Effective control over the prison population
The Essex group emphasised that in order to ensure safety and security in prisons, prison
authorities must exercise effective control over the prison population.
401
Prisons monitored only
at the perimeters give rise to grave threats to the safety of prisoners, as highlighted by the Inter-
American Commission on Human Rights, for example:
‘[T]he fact that the State exercises effective control of the prisons implies that it must be
capable of maintaining internal order and security within prisons, not limiting itself to the
external perimeters of the prisons. (…) It is not admissible under any circumstance for the
prison authorities to limit themselves to external or perimeter surveillance, leaving the inside
of the facilities in the prisoners’ hands. When this happens, the State puts the prisoners at
permanent risk, exposing them to violence in the prison and to the abuses of other more
powerful prisoners or the criminal groups that run such prisons.’
402
The experts noted problems in many countries due to self-governance or ‘shared governance’
where prison management is left too much, often even entirely, to prisoners. Human rights bodies
have documented, for example, hierarchies of cell and yard bosses left in charge of day-to-day
management, including entry to the prison compound and cells, enjoying considerable privileges
in their detention conditions.
403
Other reports document prisoners deciding on who would receive
or be denied medical care;
404
or discipline and protection of detainees delegated to privileged
detainees who, in turn, ‘use this power to their own benet’.
405
Rule 40, which remained unchanged by the review, does not rule out systems based on self-
governance, but species its limitation to ‘social, educational or sports activities’. It also claries
that this ought to take place ‘under supervision’ and that disciplinary functions must never be
entrusted to prisoners.
The UN Subcommittee on Torture, the UN Special Rapporteur on Torture, as well as the Inter-
American Commission on Human Rights, have all emphasised concerns about self-governance
401
UN Committee against Torture, 46th session, Fourth annual report of the Subcommittee on Prevention of Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 3 February 2011, CAT/C/46/2, para. 57: ‘It is axiomatic
that the State party remains responsible at all times for the safety and well-being of all detainees and it is unaccept-
able for there to be sections of institutions which are not under the actual and effective control of the ofcial staff’.
Special Rapporteur on Torture report 2013, A/68/261, para. 49: ‘The fundamental role of authorities to exercise
effective control over places of deprivation of liberty and ensure the personal safety of prisoners from physical, sexual
or emotional abuse should be further strengthened as one of the most important obligations (see the United Nations
Standard Minimum Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders,
para. 9, and the European Prison Rules, rule 52.2). In this respect, preventive measures include increasing the
number of personnel sufciently trained in using non-violent means of resolving conicts’.
Also see UN Committee Against Torture, 47th Session, Consideration of reports submitted by States parties under
article 19 of the Convention: Concluding observations of the Committee against Torture: Bulgaria, 14 December 2011,
CAT/C/BGR/CO/4-5, para.23 (c), and UN Human Rights Council, 7th Session, Report of the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak: Addendum: Mission to Para-
guay, 1 October 2007, A/HRC/7/3/Add.3, para.90 (t). These cover the prompt and efcient investigation of all reports
of inter-prisoner violence and prosecuting and punishing those responsible; and offering protective custody to vulner-
able individuals without marginalizing them from the prison population more than is required for their protection.
402
IACHR Report on Persons Deprived of Liberty, para. 53.
403
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on
the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment to Mali, 20 March 2014, CAT/OP/MLI/1, para. 59 (SPT Report on visit to Mali).
404
IACHR Report on Persons Deprived of Liberty, para. 540. See also para. 583, stressing that relatives and others
visits in correctional facilities run by systems of ‘self-governance’ or ‘shared governance’ were directly exposed to
kidnapping, extortion, acts of forced prostitution, and all types of abuse and assault perpetrated by those who de facto
exercise control in these prisons.
405
Special Rapporteur on Torture report 2013, A/68/295, para. 47.
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of prisoners in cases where it exceeded these boundaries. All bodies emphasised the prohibition
of self-governance in prisons as enshrined in the SMR.
406
Some have also highlighted the link
to corruption, stating that corruption was ‘evidenced by the almost complete control of certain
places of detention by organised criminal groups’.
407
The experts noted that in an atmosphere of
corruption it is likely that dangerous goods will to be brought into prison in exchange for bribes,
undermining safety and security.
Adequate prisoner-staff ratio
The Essex group highlighted that the ability to exercise effective control is intrinsically linked to the
availability of sufcient resources, in particular an adequate staff-prisoner ratio (day and night). It
requires qualied and well-trained staff (see Rules 74-80).
408
(See Chapter 2, Prison management.)
The experts noted that adequate numbers of staff need to be present at all times, including
overnight. Incidents often occur during the night, a time when usually there are fewer staff on duty
and often also more junior staff members.
Separation and classication
The Essex group recalled that the separation of prisoners (Rule 11) is one means of providing
safety. The separation of women from men, and of juveniles from adults makes it easier to care
for their specic needs, but it is also a key measure to protect them from violence and exploitation,
including sexual violence.
Classication and risk assessments of prisoners are another key tool, seeking to differentiate
levels of security applied for different prisons and prisoners.
à For more detail on classication and risk assessments, see Chapter 2, Prison
management
Diligent le management
The Essex group stressed the importance of proper prison le management as a tool for ensuring
safety and security. Documentation of classication and risk assessments, behaviour and discipline
and the imposition of any disciplinary sanctions (Rule 8(b), (c) and (e)) ensures that where there
are staff changes or the transfers of prisoners to other facilities, relevant information is available
about risks associated with each individual prisoner.
Dynamic security and conict prevention
Lessons learned over the last 60 years include the acknowledgement that techniques of conict
resolution and mediation not only ensure human rights compliance, but also are more effective and
efcient in providing for the safety and security of prisoners and prison staff.
à For further detail, see Chapter 2, Prison Management.
406
Special Rapporteur on Torture report 2013, A/68/295, para. 47. SPT Report on visit to Mali, CAT/OP/MLI/1, para. 61.
407
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on
the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment to Brazil, 5 July 2012, CAT/OP/BRA/1, para. 57 (SPT Report on visit to Brazil).
408
See also UN Committee against Torture, Observations of the Committee against Torture on the revision of the United
Nations Standard Minimum Rules for the Treatment of Prisoners (SMR), 16 December 2013, CAT/C/51/4, para. 15
(CAT SMR revision observations).
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Restrictions, discipline, sanctions and searches
à On searches, see also Chapter 1
à On disciplinary measures and procedures, see also Chapter 5.
The Essex group noted the role of fair and transparent disciplinary rules for the safety and
security inside prison. However, they emphasised the effectiveness of a system of incentives
and recommended that prison managers make more use of positive motivation as compared to
disciplinary sanctions.
Searches of prisoners, visitors and staff were discussed in relation to the prevention of dangerous
items being brought into prison (Rules 50-52 and 60), but it was noted the risk searches may have
on the right to human dignity. The Inter-American Principles and Best Practices provided examples
of measures to prevent violence against – or between – persons deprived of liberty, and call on
prison staff to:
‘Effectively prevent the presence of weapons, drugs, alcohol, and other substances and objects
forbidden by law, by means of regular searches and inspections, and by using technological and
other appropriate methods, including searches to personnel.’
409
The experts highlighted that safety and security require clear and transparent prison rules, with
rights and obligations that are made known to the prisoners upon admission and which they have
access to and understand (see Rules 54, 55).
While staff must enforce discipline as a means of maintaining order, Rule 36 also makes clear that
discipline must operate ‘with no more restriction than is necessary’. Methods of delivering safety
based on incapacitation alone – for example, through universal lockdowns, or excessive use of
force – are ineffective and unlikely to deliver a safer environment.
‘Member States have to ensure that prisons are secure, safe and well-ordered but are not run in
an oppressive or brutal manner. It is the duty of the prison authorities to implement the sentence
of the court, not to impose additional punishment. The term ‘rmness’ in Rule 27 of the SMRs is
not to be confused with harshness, but should be understood to mean consistency and fairness
in all measures that aim to establish good order and in all disciplinary procedures. On the same
basis, rmness should never be understood to imply the use of unnecessary force, the strict
limitations of which are explained in Rule 54 of the SMRs.’
410
The UN Subcommittee on Prevention of Torture, for example, observed that ‘the increasingly strict
prison regime, lack of employment opportunities, lost parole, long hours of lock down, etc., may
have a bearing on increased levels of violence’.
411
409
Principle XXIII (1d) of the Principles and Best Practices on the Protection of People Deprived of Liberty in the
Americas.
410
Open-Ended Intergovernmental Expert Group on The Standard Minimum Rules for the Treatment of Prisoners,
Working paper prepared by the Secretariat, Buenos Aires, Argentina, 6 November 2012, UNODC/CCPCJ/
EG.6/2012/2.
411
Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on
the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment to New Zealand, 28 July 2014, CAT/OP/NZL/1, para. 35 (SPT Report on visit to New Zealand).
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Training of prison staff
Training specically on issues relating to safety and security are captured in Rule 76(1c), and
it is noted that, ‘at a minimum’, training shall include the concept of dynamic security as well as
‘the use of force and instruments of restraint, and the management of violent offenders’, with due
consideration given to ‘preventive and defusing techniques, such as negotiation and mediation’.
Rule 75(3) claries that training courses need to be provided not only prior to entering service, but
continuously ‘with a view to maintaining and improving the knowledge and professional capacity’
of personnel. Rule 82(2) further notes that ‘prison staff shall be given special physical training to
enable them to restrain aggressive prisoners’.
In order to implement the SMR, in particular on proportionate use of force, arms and restraints,
it is vital that prison staff are trained on non-violent means of resolving conicts, and receive
practical training on a range of use of force techniques, from empty hand techniques
412
to the use
of weaponry, to ensure that they are able to use no more force than is strictly necessary. Training
should include explicit emphasis on human rights, and how to operationalise human rights. It
should also include material on the risks and human rights concerns associated with the use of
particular weapons/force options. As some use of force options and techniques pose a greater risk
than others, training should ensure that ofcers are given a level of training commensurate with the
complexity of the technique in question, and the risks it may pose.
Training should incorporate real life scenarios, practical exercises and scenario-based
assessments, ensuring that ofcers can practically use the skills they have been taught and
respond to a range of different circumstances.
Delivering detailed modules on the following aspects was mentioned as a good practice: avoiding
danger, conict prevention, defusing the situation, controlling the situation, necessity, guidance on
decision whether use of force is necessary, reasonability in the circumstances, and using the least
amount of force possible.
413
Regular system assessments
Implementation of safety and security also implies that prison administrations take a step back
from the daily management of the prison to reect, identify and resolve challenges and recurring
issues in relation to safety and security. Periodic assessments enable the prison administration to
identify questions of a systemic nature that require regulation or intervention by central authorities
and that should be dealt with by those responsible for the prison system as a whole.
414
The importance of periodic reassessments of re safety specically has been highlighted by the
Inter-American Commission on Human Rights which recommended that the re department should
be requested to ‘periodically inspect and deliver assessments on the appropriateness of the re
safety and prevention measures’ to prisons ‘nationwide’.
415
412
‘Empty hand techniques’ is an umbrella term used to refer to force that is inicted without any kind of weapon or
equipment. This can include, for example, punches, kicks, ground pins, strikes and pressure point techniques.
413
HM Prison Service, Prison Service Order 1600: Use of Force, London, 2005 (amended 2015).
414
See also UNODC, Handbook on prisoner le management, New York, 2008, p. 44, on the importance of processes
and procedures to ‘monitor the performance of various components of the organization in helping achieve the stra-
tegic objectives of the institution’.
415
IACHR Report on Honduras, para. 162 (10), page 62.
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Meaningful activities and mental health
Occupying prisoners’ time with purposeful activity serves not only the rehabilitative purpose of
imprisonment, but also reduces risks of violence. It has been established that meaningful activities
keep prisoners engaged and channel their energy into constructive activities, ‘reducing their
motivation to engage in disorder’. At the same time such programmes allow prison staff to establish
positive relationships with prisoners and contributes to dynamic security.
416
Rule 4(2) recalls the rehabilitative purpose of imprisonment and calls on prison administrators to
offer education, vocational training and work.
The European Committee to Prevent Torture (CPT), for example, has stressed the importance
of a ‘satisfactory programme of activities (…) as diverse as possible (education, sport, work of
vocational value, etc.)’, including and in particular in high security units, stating that ‘[i]t can do
much to counter the deleterious effects upon a prisoner’s personality of living in the bubble-like
atmosphere of such a unit’.
417
Use of force and arms
The Essex group noted that guidance in the revised SMR on the use of force and arms remains
limited as this area was not updated in the course of the review. It is noteworthy that the only
provision relating to the use of force and to arms is contained in the section on ‘institutional
personnel’ rather than in any of the substantive sections.
However, the SMR are supplemented by the Code of Conduct for Law Enforcement Ofcials,
418
and the Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials (BPUFF).
419
Both of these instruments enshrine the requirements of prescription by law, necessity and
proportionality and call on law enforcement
420
to, ‘as far as possible, apply non-violent means’.
The use of force and restraints is documented as a high risk situation for ill-treatment of prisoners,
and ‘as such call[s] for specic safeguards’.
421
The experts noted that often the use of force, restraints and arms (including rearms) are linked,
and recommended that more guidance is compiled on their use in a prison context, which should
describe examples of legitimate and illegitimate use. They also recommended more guidance to
clarify ambiguous terms such as ‘arms’ and ‘passive physical resistance’.
416
Handbook on Dynamic Security, pp. 38-39.
417
CPT 11th General Report, CPT/Inf (2001) 16, para. 47.
418
Article 3 of the Code states that ‘Law enforcement ofcials may use force only when strictly necessary and to the
extent required for the performance of their duty’. The Commentary elaborates on the exceptionality and proportion-
ality, stating that ‘[i]n no case should this provision be interpreted to authorize the use of force which is dispropor-
tionate to the legitimate objective to be achieved’.
419
In accordance with the commentary to article 1 of the Code of Conduct for Law Enforcement Ofcials, the term ‘law
enforcement ofcials’ includes all ofcers of the law, whether appointed or elected, who exercise police powers, espe-
cially the powers of arrest or detention.
420
The term ‘law enforcement ofcials’ includes ‘all ofcers of the law, whether appointed or elected, who exercise police
powers, especially the powers of arrest or detention’ (See note 1 of the Basic Principles on the Use of Force and
Firearms by Law Enforcement Ofcials, which refers to the same denition in the commentary to article 1 of the Code
of Conduct for Law Enforcement Ofcials).
421
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 2nd
General Report on the CPT’s activities covering the period 1 January to 31 December 1991, 1992, CPT/Inf (92) 3,
para. 53 (CPT 2nd General Report).
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While a distinction is often made between the use of force, arms, rearms and restraints, and
specic standards are applicable to them, a number of principles apply to all uses of force and
other coercive measures. These are:
• principle of legality
• principle of necessity
• principle of proportionality
• relevance of classication, prisoner le management, conict prevention and dynamic
security
• documentation of use
• training
• accountability.
In order to be permissible the use of force or arms must be ‘used only in exceptional
circumstances, when strictly necessary as specied by law’.
422
The experts recommended policy-
makers provide written regulations setting out which different force options can (and cannot) be
used, the criteria for their deployment and the risks that accompany their use. Providing clear
guidance on different use of force options has been shown to inuence signicantly their use in
practice.
423
The principle of necessity means that force or arms should be used ‘only when less extreme
means are insufcient’ to achieve the objective. Basic Principle 4 of the BPUFF states that law
enforcement ofcials shall ‘as far as possible, apply non-violent means before resorting to the use
of force and rearms’ and may use them ‘only if other means remain ineffective or without any
promise of achieving the intended result’. Basic Principle 5 uses the term ‘unavoidable’,
424
and the
Special Rapporteur on Torture refers to the concept of ‘last resort’.
425
The experts stressed that factors such as a sufcient prisoner-staff ratio and adequate training of
ofcers play a role when determining the necessity of such an intervention. They further recalled
the relevance of conict prevention and mediation as alternatives to physical intervention.
426
The experts noted that the use of force, arms and/or restraints may increase rather than decrease
the number and severity of incidents. As captured in the 2010 Survey of the UN and other best
practices in the treatment of prisoners in the criminal justice system:
422
Special Rapporteur on Torture report 2013, A/68/295, para. 58.
423
For example, when the Dallas Police implemented a more ‘restrictive’ policy on conducted energy weapons, the use
of these weapons ‘dropped signicantly’ (Stephen Bishopp, David Klinger and Robert Morris, ‘An Examination of the
Effect of a Policy Change on Police Use of TASERs’, Criminal Justice Policy Review, Vol. 26 No. 7, October 2015, p.
737)
424
Basic Principle 5 of the Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials.
425
Special Rapporteur on Torture report 2013, A/68/295. para. 58.
426
Rule 38(2) in this context as it encourages, ‘to the extent possible, conict prevention, mediation or any other alter-
native dispute resolution mechanism’ (although in the context of disciplinary measures), and of Rule 76(c) which
encourages the use of the concept of dynamic security. (See Chapter 2, Prison management – Dynamic security and
conict prevention.)
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‘Excessive security and control can, at its worst, lead to a sense of injustice and increase
the risk of a breakdown of control and of violent or abusive behaviour.’
427
Thirdly, the use of force or other coercive means need to meet the test of proportionality. Basic
Principle 5 describes that where the use of force is ‘unavoidable, law enforcement ofcials shall
(a) exercise restraint in such use and act in proportion to the seriousness of the offence and the
legitimate objective to be achieved’, and should ‘(b) minimise damage and injury (…)’.
While the extent of a threat and impact of a counter-measure may be difcult to predict, the experts
noted that compared to police who have to make assessments in respect to entirely unknown
individuals, prison staff do have information about the individuals in their custody. In fact, proper
classication of prisoners, le management and dynamic security all contribute to allowing an
assessment of which measure is adequate (proportionate) in resolving the situation with minimal or
no use of force.
In this context, the experts recalled Basic Principle 2, which requires law enforcement agencies to
‘develop a range of means as broad as possible and equip law enforcement ofcials with various
types of weapons and ammunition that would allow for a differentiated use of force and rearms’.
These should include the development of non-lethal incapacitating weapons for use in appropriate
situations.
The principle also implies that the use of force or arms must be ceased as soon as it is not
necessary or proportionate any longer (i.e. it is used for the shortest possible time).
428
The importance of documentation was emphasised as another general principle for both the use of
force and arms, in order to enable a review of its application and to ensure accountability.
429
Good
practice from the UK was mentioned where a report is led each time any arm, including a baton,
is even drawn. It was also highlighted that medical personnel should examine prisoners after every
use of force or arms.
430
The experts mentioned the benets of closed circuit television (CCTV) and body cameras,
especially those recording the use of arms, as they allow for accountability and have been found to
reduce their use.
The importance of training was emphasised, as well as the need to review training programmes
and operational procedures in light of particular incidents.
à For more detail on training, see above; see also Chapter 2, Prison management
The experts noted that wherever new methods or devices are deployed, prison staff are keen on
using them. They also highlighted that carrying a weapon may enhance security, but it could also
threaten it if it undermines the creation of an institutional culture which supports a rehabilitative
rather than a punitive approach, and emphasises conict prevention over repression.
427
Twelfth United Nations Congress on Crime Prevention and Criminal Justice, Workshop 2: Survey of United Nations
and other best practices in the treatment of prisoners in the criminal justice system: Background Paper, 28 January
2010, 6A/CONF.213/13, para. 45. See also studies on prison populations which have found that those inmates who
have had force used upon them in the past are ‘more likely to engage in assaultive and other rule violating behaviour’
once in prison (for example, Charles Klahm, Benjamin Steiner and Benjamin Meade, ‘Assessing the Relationship
between Police Use of Force and Inmate Offending (Rule Violations)’, Crime and Delinquency, 17 November 2014).
428
See, for example, CPT 2nd General Report, [CPT/Inf (92) 3], para. 53
429
See, for example, CPT 2nd General Report, para. 53, stating that ‘a record should be kept of every instance of the
use of force against prisoners’.
430
See, for example, CPT 2nd General Report, para. 53
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Lastly, the experts highlighted the need for accountability, as also expressed in Rules 22-26 of the
UN Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials, and the link
to effective complaints mechanisms as well as external, independent monitoring.
à For more on complaints, see below; see also Chapter 2, Prison management – inspection
and external monitoring
Use of force
The Essex group noted that Rule 82 has not been updated in the course of the review and that
its interpretation needs to draw on the Basic Principles on the Use of Force and Firearms by Law
Enforcement Ofcials (BPUFF) and the Code of Conduct on Law Enforcement Ofcials.
Accordingly, situations of ‘self-defence or in cases of attempted escape, or active or passive
physical resistance to an order based on law or regulations’ described in Rule 82(1) only make the
use of force permissible if and when it is also necessary and proportionate
431
(for detailed guidance
on these principles, see above).
The experts noted a divergence between Rule 82 and Basic Principle 15 of the BPUFF. The latter
states that force shall not be used ‘except when strictly necessary for the maintenance of security
and order within the institution, or when personal safety is threatened’.
Concern was expressed over the ambiguity of the term ‘passive physical resistance’ in Rule 82(1).
The experts discussed possible cases where this might apply and noted that the term could refer
to instances where prison staff seek and fail to enforce an order, but emphasised that not every
case of resistance to an order would render the use of force permissible. The experts felt that the
term must not be interpreted too broadly and recommended the provision be claried with concrete
examples.
Use of arms
Provisions on the use of arms in the revised SMR remain limited to the provision of Rule 82(3),
according to which prison staff performing duties in direct contact with prisoners should not be
armed. The Essex group noted that ofcers guarding the external walls of a prison often carry
rearms, yet would not be performing duties in direct contact with prisoners at the same time, and
therefore should hand in their arms before they do.
The Essex group noted ambiguity of the terms ‘arms’ and ‘armed’, which applies not only to
conventional rearms, but to the full range of weaponry with which prison ofcials are equipped.
432
Varying from one correctional setting to another, such arms can include batons, electrical discharge
weapons (EDW), irritant sprays (e.g. pepper spray), kinetic impact weapons (e.g. so called ‘rubber
bullets’), canines, – or even ‘ceremonial arms’ (e.g. whips).
The experts reiterated that under no circumstances must prison ofcials be equipped with
weaponry deemed to have no other use than for the purpose of torture or ill-treatment. Discussions
at previous deliberations of the Essex group
433
were recalled on the prohibition of body-worn
431
Rule 82 (1) emphasises the proportionality aspect (‘no more than is strictly necessary’) and requires an immediate
report of the incident to the prison director. Article 3 of the Code of Conduct also uses the term ‘only when strictly
necessary’ and the commentary species it should be ‘exceptional’.
432
The use of dogs in some countries was also raised as a possible application of an arm. It was mentioned that in some
countries ofcers carry ceremonial arms.
433
Essex 2, paras. 50-51.
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electro-shock devices and restraint chairs (see UN Committee Against Torture,
434
European
Committee for the Prevention of Torture
435
and the European Commission
436
). For example, the
Omega Research Foundation has emphasised:
‘The electrical current not only causes severe pain, with one survivor describing it
as ‘very intense shocking pain, so intense I thought that I was actually dying’, but
can cause short and long term physical side effects. These include; muscular
weakness, urination and defecation, and heartbeat irregularities and seizures.’
437
The experts also recalled the ‘Second Essex paper’ with regard to the distinction between body
worn electro-shock devices and restraint chairs on the one hand and electrical discharge weapons
(EDW) on the other hand. EDWs may provide an alternative to the lethal use of rearms. However,
by their nature they ‘can cause acute pain and (…) are open to abuse’.
438
They must therefore be
subject to strict circumscription in national law.
The European Committee for the Prevention of Torture has expressed ‘strong reservations’ about
their use in prison settings, in which ‘only very exceptional circumstances (e.g. hostage-taking
situation) might justify the resort to EDW’. It stressed that even then circumstances where an
EDW is used must be ‘strictly circumscribed’ and ‘subject to the strict condition that the weapons
concerned are used only by specially trained staff’.
439
The UN Committee against Torture has
concluded that EDWs should not be part of the general equipment of custodial staff in prisons or
any other place of deprivation of liberty.
440
In light of this guidance, the experts noted good practice, in which legal framework explicitly
prohibits specic acts or weapons such as ‘striking with truncheons’ or ‘electric-shocks’.
441
The experts recalled in this context that particular weapons may be considered to constitute
a proportionate response to incidents occurring outside of prisons, however, may not prove a
proportionate response to similar incidents in detention due to an enhanced risk of death or
serious injury that they pose in such environments (e.g. kinetic impact projectiles when used at
434
The Committee recommended the abolition of electro-shock stun belts and restraint chairs as ‘methods of restraining
those in custody; their use almost invariably leads to breaches of article 16 of the Convention’ (UN Committee against
Torture, 23rd and 24th Sessions, Report of the Committee against Torture: Consideration of reports submitted by
States Parties under article 19 of the Convention: M. United States of America, 2000, A/55/44, paras. 175-180).
435
CPT, 20th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (CPT): 1 August 2009-31 July 2010, Strasbourg, 26 October 2010, p. 35 (CPT 20th General
Report).
436
European Commission, Commission Implementing Regulation (EU) No 775/2014 of 16 July 2014 amending Council
Regulation (EC) No 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture
or other cruel, inhuman or degrading treatment or punishment, 16 July 2014, Annex 1, provisions 2.1 and 2.5.
437
Philip Yoon, ‘The “Stunning” Truth: Stun Belts Debilitate, They Prejudice, and They May Even Kill’, Capital Defense
Journal, Volume 15, Issue 2, 2003, pp. 383-404.
438
CPT 20th General Report, p.35.
439
CPT 20th General Report, p.36.
440
CAT SMR revision observations, para. 38.
441
Government of Uganda, Acts Supplement Noto The Uganda Gazette No. 52 Volume CV dated 18th September,
2012: The Prevention And Prohibition of Torture Act 2012: Second Schedule – Acts constituting torture, 2012, which
describes them as ‘acts constituting torture’.
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close range).
442
. ‘Serious reservations’ have also been raised about the ‘the use of irritant gases
443
[especially the alleged use of teargas] in conned spaces, as it may entail health risks and cause
unnecessary suffering’.
444
The experts recalled Basic Principle 2 of the BPUFF, which requires law enforcement agencies to
‘develop a range of means as broad as possible and equip law enforcement ofcials with various
types of weapons and ammunition that would allow for a differentiated use of force and rearms’.
These should include the development of non-lethal incapacitating weapons, while carefully
controlling the use of such weapons and evaluating them to ‘minimize the risk of endangering
uninvolved persons’.
445
Where prison ofcials are provided with arms, Rule 82(3) is unambiguous in that ofcers should
be trained in their use (see above). In this context, Basic Principle 20 calls for special attention
to ‘ethics and human rights, (...), to alternatives to the use of force and rearms, including the
peaceful settlement of conicts, (... and) methods of persuasion, negotiation and mediation, as well
as to technical means, with a view to limiting’ their use.
Where arms are used in places of detention, they should be stored safely, with access only to
those entitled and clear records (e.g. signing in and out of arms), providing accountability for the
use of weapons.
Use of rearms
The commentary to Article 3 of the Code of Conduct emphasises that ‘the use of rearms is
considered an extreme measure’ and that ‘Every effort should be made to exclude the use of
rearms’.
Situations which may prompt the use of rearms are described in Basic Principle 9 as ‘self-
defense or defense of others against the imminent threat of death or serious injury, to prevent the
perpetration of a particularly serious crime involving grave threat to life, (…) or to prevent his or
her escape’.
446
However, the Essex group emphasised that a particular threshold applies for the
use of lethal force, which can only ever be applied ‘when strictly necessary to protect a life’.
447
The
Basic Principles also clarify that ‘intentional lethal use of rearms’ may only be used ‘when strictly
unavoidable in order to protect life’.
442
Impact projectiles can be red from a wide variety of weapons, and projectiles can be made of wood, rubber, plastic
or other materials (e.g. fabric bags weighted with lead shot). Single and multiple projectiles can be red including,
for example, balls, segments, blocks or cylinders of wood, plastic or rubber (often referred to as ‘rubber bullets’). On
impact they are designed to cause blunt trauma (i.e. non-penetrating trauma); however, they often cause serious
injuries including lacerations, broken bones, concussion, head injuries or internal organ damage (Omega Research
Foundation, Tools of torture and repression in South America: Use, manufacture and trade, June 2016, p. 16).
443
Chemical irritants are designed to deter or disable an individual, by producing temporary irritation of the eyes and
upper respiratory tract. The most commonly used chemicals include CN or CS (commonly called tear gas) and OC/
Pepper and PAVA (commonly called pepper spray). Chemical irritants are delivered through hand-held aerosol sprays,
hand-thrown grenades, weapon- launched projectiles/grenades, as well as via water cannon. (Omega Research
Foundation, Tools of torture and repression in South America: Use, manufacture and trade, June 2016, p. 18).
444
For example, the UN Subcommittee on Prevention of Torture, has expressed “serious reservations about the use of
irritant gases in conned spaces, as it may entail health risks and cause unnecessary suffering” (SPT Report on visit
to Brazil, CAT/OP/BRA/1, para. 128.)
445
Principle 3 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials.
446
Principle 9 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials. The case of
‘arrest’ was not included here as not relevant in the detention context.
447
Principle XXIII (2) of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the
Americas.
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The Inter-American Commission on Human Rights has claried that:
‘In cases of ight or escape of persons deprived of their liberty, the State must employ all
non-lethal means at its disposal to recapture the offenders and may only use lethal force
in cases of imminent danger in which prisoners attempting to escape react against prison
guards or third parties with violent means that threaten their lives. Therefore, there is no
ethical or legal justication for a so-called ‘escape law’ legitimizing or empowering prison
guards to automatically re on prisoners attempting to escape.’
448
‘In every instance in which a rearm is discharged’ a report needs to be made promptly to the
competent authorities.
449
Moreover, Basic Principle 11 species that rules and regulations on the use of rearms should
include guidelines, which:
‘(a) Specify the circumstances under which law enforcement ofcials are authorized to carry
rearms and prescribe the types of rearms and ammunition permitted;
(b) Ensure that rearms are used only in appropriate circumstances and in a manner likely to
decrease the risk of unnecessary harm;
(c) Prohibit the use of those rearms and ammunition that cause unwarranted injury or present
an unwarranted risk;
(d) Regulate the control, storage and issuing of rearms, including procedures for ensuring that
law enforcement ofcials are accountable for the rearms and ammunition issued to them;
(e) Provide for warnings to be given, if appropriate, when rearms are to be discharged;
(f) Provide for a system of reporting whenever law enforcement ofcials use rearms in the
performance of their duty.’
These provisions would seem to have a broader applicability, and could usefully be extended to
apply to all weapons used by state ofcials, not just rearms.’
450
Complaints
Rules 56 and 57 stipulate the right of prisoners to issue requests and complaints. The Essex group
discussed the following questions:
• Who can issue a complaint?
• How are prisoners informed about them?
• What are the types and contact points of complaints?
• What is the distinction between request and complaint?
• When is a complaints procedure effective?
• How are prisoners protected against reprisals?
The Essex group highlighted various issues for further deliberation including: the different types of
request and complaints, in particular the interlinkages with external and independent complaints
448
IACHR Report on Honduras, para. 237.
449
Commentary to Article 3 of the UN Code of Conduct on Law Enforcement Ofcials, adopted by General Assembly
resolution 34/169 of 17 December 1979.
450
UN Code of Conduct
for
Law Enforcement
Ofcials, adopted by General Assembly resolution 34/169 of 17 December
1979.
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systems, clarication of the term ‘judicial or other competent authorities, including those vested
with reviewing and remedial power’ (see Rule 56 (3) and Rule 57 (1)) and practical measures to
prevent reprisals.
The experts recommended that prison administrations keep track of the number and nature of
complaints as they are an important indicator for identifying and addressing grievances with the
potential to prevent unrest and violence.
451
The UN Committee against Torture has called for ‘a
centralized register of complaints that includes information on the corresponding investigations,
trials and criminal and/or disciplinary penalties imposed’.
452
The SPT has taken the lack of any
trace of complaints by detainees in registers as evidence for the absence of an ‘institutionalized
complaints system’.
453
Who can issue a complaint?
The beneciaries of the right to make requests and complaints are captured in Rule 56 (4).
Primarily this is the prisoner, but also his/her legal representative and in case neither is able to
exercise the right a ‘member of the prisoner’s family or any other person who has knowledge of the
case’.
The Essex group recalled that the entitlement of family members to make a request or complaint
seeks to account for the well acknowledged barriers of persons deprived of their liberty to contact
the outside world, and does not require any proof of the detainee’s inability to submit a complaint.
For example, this is provided for in Principle VII of the Principles and Best Practices on the
Protection of Persons Deprived of Liberty in the Americas.
454
How are prisoners informed about complaint mechanisms?
Examining Rules 54(b) and 55, the Essex group shared the observation of the Special Rapporteur
on Torture that, because of literacy limitations (including legal literacy) and learning disabilities
many detainees have difculty in completing complaint forms.
Formal requirements should therefore be minimal and if forms are used, they should be simple and
accessible, including for ‘those who may have limited communication abilities’.
455
Prison administrations should therefore make information about requests and complaints available
‘in both written and oral form, in Braille and easy-to-read formats, and in sign languages for deaf or
hard-of-hearing individuals’ and ‘display it prominently in all places of deprivation of liberty’.
456
It is
good practice to display posters illustrating the avenues to issue requests or complaints on prison
walls in an easy-to-understand way.
451
An effective complaint system and records of complaints lodged are recommended also by the IACHR, stating that
‘the reception and examination of complaints and petitions is an effective mechanism for (…) detecting structural de-
ciencies or abuses committed by prison ofcials’ (IACHR Report on Persons Deprived of Liberty, p. 87.
452
CAT SMR revision observations, para. 53.
453
SPT Report on visit to Mali, CAT/OP/MLI/1, para. 91.
454
Principle VII of the Inter-American Principles and Best Practices on the Protection of Persons Deprived of Liberty
in the Americas states: ‘Persons deprived of liberty shall have the right of individual and collective petition and the
right to a response before judicial, administrative, or other authorities. This right may be exercised by third parties or
organizations, in accordance with the law. This right comprises, amongst others, the right to lodge petitions, claims, or
complaints before the competent authorities, and to receive a prompt response within a reasonable time.’
455
CAT SMR revision observations, CAT/C/51/4, para.54.
456
Special Rapporteur on Torture report 2013, A/68/295, para. 79.
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Other good practice examples mentioned were telephone hotlines and condential complaint
boxes.
457
Types of complaints and contact points
Rule 56 (1) and (2) and Rule 57(1) read together suggest a complaints mechanism escalating
through various stages, as described below, although the wording makes clear that there is no
limitation or specic order for these different stages.
458
The different stages envisaged are:
1. to the prison director (or the person appointed by him/her, each day, Rule 56 (1))
2. to the inspector of prisons during his/her inspections (Rule 56 (2))
3. to the central prison administration (Rule 56 (3))
4. to a judicial or other competent authority, including those vested with reviewing or remedial
power (Rule 56 (3))
5. to an independent national authority in case of allegations of torture or other cruel, inhuman
or degrading treatment or punishment (71 (1) and (2)).459
There are slightly different provisions depending on the type of request and complaint:
1. Complaints to the prison director (or the person appointed by him/her) must be available ‘each
day’ (Rule 56 (1)).
2. Where complaints are raised with the inspector of prisons, the prisoner must have the
opportunity to talk to the inspector in private, without the presence of the prison director or staff.
(Rule 56 (2) notes that this Rule is equally relevant for external monitors, see Rule 84 (c)).
3 & 4. Rule 56 (3) enshrines the right to make complaints to the central prison administration and
to ‘the judicial or other competent authority, including those vested with reviewing or remedial
power’. The wording claries that such complaints can be made ‘without censorship as to
substance’, implying that a) prisoners do not need to issue an internal complaint rst, and b)
complaints must be passed on as they are made.
5. Specic rules apply in case of allegations of torture or other cruel, inhuman or degrading
treatment or punishment, in line with obligations under the Convention against Torture and
the Istanbul Protocol.
460
They must be dealt with immediately and shall result in a prompt and
impartial investigation conducted by an independent national authority in accordance with Rule
71 (1) and (2).
457
CAT SMR revision observations, CAT/C/51/4, para.54.
458
Further guidance can be drawn from Principle 33 of the UN Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, adopted by the UN General Assembly on 9 December 1988, A/RES/43/173.
459
The UN Committee against Torture has recommended establishing ‘a central and accessible mechanism to receive
complaints of torture or ill-treatment’ (CAT SMR revision observations, CAT/C/51/4, para. 53).
460
UN High Commissioner for Human Rights, Manual on Effective Investigation and Documentation of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the Istanbul Protocol), 1999, 2004. See
also Principle V of the Inter-American Principles and Best Practices on the Protection of Persons Deprived of Liberty
in the Americas.
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The Essex group suggested that the terms ‘independent national authority’ and ‘judicial or other
competent authority’ need further clarication and noted that a complaints mechanism is distinct
from an external (preventive) monitoring body.
461
They also suggested that Principle 33(1) of
the UN Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment indicates that a higher authority needs to be involved (‘authorities vested with
reviewing or remedial powers’).
The experts mentioned the practice of employing non-operational members of staff (not wearing
uniform) as ‘contact ofcers’, and they were seen positively by prisoners as less threatening and
more approachable. At the same time, the experts cautioned against assigning ‘wing leaders’
or ‘yard bosses’ as recipients of informal complaints
462
as such a system is open to abuse and
constitutes self-governance in contradiction to Rule 40(2).
Distinction between requests and complaints
The SPT has documented problems with requests and complaints procedures due to lack of
‘distinction between a request and a complaint, both being submitted on the same forms and
processed in the same way’, stating that ‘As a result, simple requests are not dealt with quickly,
and serious complaints can be trivialised’.
463
The Essex group conrmed that the majority of complaints are related to day-to-day issues,
conditions of detention and basic services such as food, telephone calls, appointments with
doctors, recreational, work-related or educational activities. Many of these can be solved without a
lengthy complaints procedure and with modest nancial means.
464
As both the Special Rapporteur on Torture and the SPT have noted these types of requests/day-
to-day complaints could be addressed by delegating independent, dedicated persons to receive
and handle minor complaints and ensure that steps are taken within a reasonable period of time to
set aside funds required to give effect to these rights.
465
Also, many incidents can be resolved by
prompt action by the prison staff.
The experts claried that requests and complaints can be brought against acts as well as
omissions of the prison administration/ staff.
Effectiveness of complaints mechanisms
The SPT stressed that ‘the mere existence of complaints mechanisms is not enough; they must be,
and must be seen to be, independent and impartial, and should offer guarantees of effectiveness,
promptness and expeditiousness’.
466
Rule 57 describes procedural aspects, applicable to ‘every request or complaint’, (emphasis
added) i.e. all types described under 1) to 5). It stipulates that they must be:
461
The emphasis of external monitoring mechanisms is on the prevention of torture, through the identication of systemic
risk factors contributing to an environment where torture or other ill-treatment arise, and recommendations in order to
address and rectify these risk factors. The function of complaints mechanisms, by comparison, is to investigate indi-
vidual cases of torture and ill-treatment, to adjudicate on the facts of the case and redress for the individual victim.
462
Participants mentioned the system of ‘ward leaders’ in East Africa, and ‘Chaveiros’ in Latin America, for example. See,
for example, concerns expressed in SPT Report on visit to Mali, CAT/OP/MLI/1, paras. 31, 91.
463
SPT Report on visit to New Zealand, CAT/OP/NZL/1, para. 44.
464
Special Rapporteur on Torture report 2013, A/68/295, para. 78.
465
Special Rapporteur on Torture report 2013, A/68/295, para. 78.
466
SPT Report on visit to Brazil, CAT/OP/BRA/1, para. 32.
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• promptly dealt with
• replied to without delay; and there must be
• availability of a remedy in case of rejection or undue delay (‘can be brought before judicial or
other authority if rejected or in case of undue delay’).
467
The Essex group listed the following established requirements of effectiveness for complaints
mechanisms:
468
1. sufcient detachment from the authority alleged of wrongdoing (independence)
469
2. fairness and perceived fairness
3. promptness of enquiry into complaint (‘without undue delay’
470
)
4. condentiality – if requested
471
5. complaint mechanism needs power to enquire
6. facilitates simple, prompt and effective recourse
472
7. safety from reprisals.
473
Effective mechanisms should seek to proactively address circumstances that discourage
prisoners from issuing complaints.
474
The UN Special Rapporteur on Torture has emphasised
that complainants may require access to independent lawyers and timely independent medical
467
As required by Principle 33(4) of the UN Body of Principles for the Protection of All Persons under Any Form of Deten-
tion or Imprisonment: ‘If the request or complaint is rejected or, in case of inordinate delay, the complainant shall be
entitled to bring it before a judicial or other authority’.
468
The principles draw on the Special Rapporteur on Torture report 2013, A/68/295.
469
Special Rapporteur on Torture report 2013, A/68/295, para. 77.
470
Principle 33(4) of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
471
With regard to condentiality, the experts referred to language included in the UN Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment (Principle 33 (3) calls for condentiality ‘if so requested
by the complainant’), the Manual on the Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), the Bangkok Rules (Rule 57 (2), see also Rule
25(1)) and Article 21 of the Optional Protocol to the Convention against Torture (OPCAT). See also CAT SMR revision
observations, CAT/C/51/4, para. 54.
472
Principle VII of the Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas
emphasises the importance of a ‘simple, prompt, and effective recourse’.
473
Principle 33(4) of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprison-
ment: ‘(…) Neither the detained or imprisoned person nor any complainant under paragraph 1 of the present principle
shall suffer prejudice for making a request or complaint’. Rule 25(1) of the Bangkok Rules also requires protection
measures specically relating to the risk of retaliation (see also Rule 57(2) of the Bangkok Rules). Article 21 (1) of the
Optional Protocol to the Convention against Torture states: ‘No authority or ofcial shall order, apply, permit or tolerate
any sanction against any person or organization for having communicated to the national preventive mechanism any
information, whether true or false, and no such person or organization shall be otherwise prejudiced in any way’.
474
The SPT, for example, documented the lack of awareness of the possibility to submit a complaint, but also the lack
of trust that a complaint would lead to any positive or useful outcome, or that it would lead to reprisals against them
(Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on
the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punish-
ment to Ukraine, 16 March 2016, CAT/OP/UKR/1, para. 53 (SPT Report on visit to Ukraine)). See also SPT Report on
visit to Brazil, para. 32; and Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treat-
ment or Punishment, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment to Argentina, 27 November 2013, CAT/OP/ARG/1, para. 75 (SPT Report on visit
to Argentina).
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examination in order to substantiate their complaint.
475
Procedures also need to address the risk of
complaints being tampered with or not being transmitted to the complaints mechanism.
476
The experts noted particular disincentives for women in custody, such as the fear of stigma and
shame associated with sexual abuse and rape and of investigations involving humiliating physical
examinations. Complaints mechanisms should therefore account for the specic risks of retaliation
against women prisoners, and implement Bangkok Rules 7 and 25. Experts cautioned against
transfer of a woman to another prison, as a means of protection against reprisals, as given the
small number of women’s prisons in most countries this would ‘almost certainly mean that she
would be taken further away from her home’.
477
In order to investigate any alleged wrong-doing complaint mechanisms need to be equipped with
their own investigative capacity, rather than having to rely on the enquiries of other bodies, in
particular the one alleged of misconduct.
478
The experts identied elements of a functioning complaints system: differentiation between re-
quests and complaints (to expedite day-to-day and less serious complaints/requests); provision of
a complaints form that is easy to read/understand and freely available to prisoners (without the re-
quirement to request a form); provision of a locked and discrete complaints box at various locations
in the prison facility’; a step-by-step response system (e.g. prison ofcer at the wing, management
level, governor, Ombudsperson); and accessible ‘easy-to-read’ replies.
They emphasised that an effective complaints mechanism is one that provides recourse within rea-
sonable time if the complaint is found to be well founded, and that it must be linked with account-
ability of ofcers who are found to have violated laws or regulations. As the UN Special Rapporteur
on Torture has noted, it is important to ‘integrate a provision obliging the personnel to guarantee
the timely enforcement of any decision’.
479
Protection against reprisals
The Rules place an obligation on prison authorities to take effective measures to protect
complainants against ‘any risk of retaliation, intimidation or other negative consequence as a result
of having submitted a request or complaint’ (Rule 57(2)). As the Rule suggests, measures need
to be taken to protect the prisoner – as well as persons who are entitled to issue complaints (legal
representative, family members, according to Rule 56 (4)).
480
The UN Special Rapporteur on Torture has emphasised that ‘[m]easures in this regard include
the transfer of the complainant or the implicated personnel to a different detention facility or the
suspension from duty of the personnel’.
481
The UN Committee against Torture recommended ‘[p]
rotective measures including relocation, on site security, hotlines, and judicial orders of protection
to prevent violence and harassment against complainants, witnesses, or close associates of such
parties’.
482
475
Special Rapporteur on Torture report 2013, A/68/295.
476
See, for example, SPT Report on visit to Ukraine, CAT/OP/UKR/1, para. 53.
477
Penal Reform International and Thailand Institute of Justice, Guidance Document: United Nations Rules on the Treat-
ment of Women Prisoners and Non-Custodial Measures for Women Offenders (The Bangkok Rules), London and
Bangkok, October 2013, p. 70.
478
SPT Report on visit to Brazil, CAT/OP/BRA/1, para. 54.
479
Special Rapporteur on Torture report 2013, A/68/295, para. 77
480
The Inter-American Commission on Human Rights also emphasised that detainees who take recourse in appeals,
complaints and petitions must not be punished for ling them (IACHR Report on Persons Deprived of Liberty).
481
Special Rapporteur on Torture report 2013. A/68/295, para. 77.
482
CAT SMR revision observations, CAT/C/51/4, para. 55.
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Persons who resist what they view as unlawful orders or who cooperate in the investigation
of torture or ill-treatment, including by superior ofcials, also need to be protected against
retaliation.
483
Investigations
The UN Special Rapporteur on Torture emphasised that it is the State who bears the burden of
evidentiary proof to rebut the presumption of its responsibility for violations of the right to life and
for inhumane treatment committed against persons in its custody.
484
Accordingly, ‘the obligation on
the authorities to account for the treatment of an individual in custody is particularly stringent’ in the
case of death and exists irrespective of whether a complaint is led or not.
485
In this context, the Essex group highlighted that Rule 71(1) unequivocally requires an investigation
into any case of death. They emphasised that this includes what is often termed as cases of death
due to ‘natural causes’, and that a natural cause does not necessarily mean unavoidable. This
includes cases of deaths in custody due to lack of medical care.
486
The Inter-American Commission
on Human Rights has emphasised that ‘the fact that evidence might initially suggest the possibility
of a suicide does not exempt the competent authorities from undertaking a serious and impartial
investigation in which all logical lines of inquiry are pursued’.
487
The experts noted that the SMR deliberately omit guidance on the course and modalities of
investigations because these have to be conducted by an independent (i.e. external) body. As the
SMR are intended as a standard specically addressing prison administration and prison staff, they
focus on the obligations and role of prison authorities when such cases arise.
Initiation of an investigation
The Essex group examined Rule 71 and Rule 57,
488
which incorporate the obligation of the prison
director to ‘report, without any delay, any custodial death, disappearance or serious injury to a
judicial or other competent authority that is independent of the prison administration and mandated
to conduct prompt, impartial and effective investigations into the circumstances and causes of such
cases’.
483
CAT SMR revision observations, CAT/C/51/4, para. 45.
484
The burden of proof on the state in case of death of a person detained, but also when their physical condition
worsens, has also been maintained by the Inter-American Court of Human Rights, for example in I/A Court. Case of
Mendoza et al., 2013, para. 219; I/A Court. Case of Vera Vera v. Ecuador, 2011, para. 88; I/A Court. Case of Cabrera
García and Montiel Flores v. Mexico, 2010, para. 134; I/A Court. Case of Montero Aranguren et al (Detention Center of
Catia) v. Venezuela, 2006, para. 80; I/A Court Case of Bulacio v. Argentina, 2003, para. 127; I/A Court. Case of Juan
Humberto Sánchez v. Honduras, 2003, para. 111.
485
Special Rapporteur on Torture report 2013, A/68/295, para. 62, referring also to IACHR Report on Persons Deprived
of Liberty, para. 54. The experts referred to Principle 34 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment, which also requires an inquiry ‘into the cause of death or disappear-
ance’ whenever a ‘death or disappearance of a detained or imprisoned person occurs during his detention or impris-
onment’, ‘by a judicial or other authority, either on its own motion or at the instance of a member of the family of such
a person or any person who has knowledge of the case’.
486
See, for example, SPT Report on visit to Mali, para. 37 (‘the Subcommittee met numerous persons who were dying
due to the lack of adequate medical care’), and SPT Report on visit to Ukraine, CAT/OP/UKR/1, para. 88 (‘a large
proportion of deaths in custody were reportedly related to the combination of HIV and hepatitis B’).
487
IACHR Report on Persons Deprived of Liberty, para. 324.
488
Further guidance was drawn from Principle 34 of the 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.
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As for allegations of torture or other cruel, inhuman or degrading treatment or punishment, the
requirement of an investigation is reiterated in Rule 57(3).
The experts recalled the duty of law enforcement ofcials (which includes prison staff) to report
promptly to their superiors any case ‘where injury or death is caused by the use of force and
rearms by law enforcement ofcials’, and to send a detailed report ‘promptly to the competent
authorities responsible for administrative review and judicial control’.
489
The experts highlighted that detainees may have suffered torture or ill-treatment before being
admitted to prison, while in the custody of other law enforcement agencies. It is therefore in
the interest of prison administrations to ensure that any signs of such abuse are identied and
documented upon admission – in line with Rule 30 (b)).
490
According to Rule 34, an investigation can be triggered by healthcare staff who have an obligation
to ‘document and report to the competent medical, administrative or judicial authority’ any case in
which they become aware of signs of torture and other cruel, inhuman or degrading treatment or
punishment.
491
Accordingly, the experts noted the importance of the independence of healthcare professions
492
and noted a link to the requirement of having condential, up-to-date medical les (Rule 26).
à See more in Chapter 4, Healthcare
Independent body of enquiry
The Essex group noted that there is an obligation of the state to ensure the establishment of an
independent investigatory body, since an enquiry carried out by prison administrations would
be ‘marred by a conict of interest’.
493
The Essex group noted that the independence of the
investigatory body is in the interest of prison administrations as it demonstrates fairness and
accountability, and is needed to refute malicious allegations.
The body must be an ‘external investigative body, independent from those implicated in the
allegation and with no institutional or hierarchical connection between the investigators and the
alleged perpetrators’.
494
Modalities of the investigation
Given that the duty to investigate rests with an external body, the role of the prison administration
in cases of death, disappearance or serious injury is to:
• ensure the external investigation is initiated, by promptly reporting the incident
489
Principle 6 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Ofcials.
490
The obligation of an examination upon entering prison on whether the detainee had been a victim of torture or ill-treat-
ment is also enshrined in Principle IX of the Principles and Best Practices on the Protection of Persons Deprived of
Liberty in the Americas.
491
CAT SMR revision observations, CAT/C/51/4, para. 19; IACHR Report on Persons Deprived of Liberty, para. 564.
492
See, for example, Inter-American Commission on Human Rights, about the importance of health care professionals
acting with autonomy and independence, free from any interference, coercion or intimidation. (IACHR Report on
Persons Deprived of Liberty, para. 561).
493
Special Rapporteur on Torture report 2013. A/68/295, para. 64.
494
Special Rapporteur on Torture report 2013, A/68/295, para. 64, with reference also to Jordan v. United Kingdom, appli-
cation No. 24746/94, para. 106.
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• preserve the evidence within the perimeters of the prison
• ensure that ofcers implicated in the incident do not interfere with the investigation
• protect the alleged victim and witnesses
• cooperate with and support the investigative body, and;
• collect and monitor occurrences of such incidents in order to identify and address any
structural causes.
The Essex group noted clarication by the UN Committee against Torture of the meaning of
‘prompt’ for the initiation of an investigation by the prison director, stating that this ‘must be initiated
within hours or, at the most, within days’ and that relatively short delay can constitute a violation of
Article 12 of the Convention against Torture.
495
The UN Special Rapporteur on Torture has emphasised that: ‘[t]here should be protocols and
guidelines for the prison administration about cooperating with the authorities by not obstructing
the investigation and by collecting and preserving evidence’.
496
The experts emphasised that other
than those measures required immediately after an incident, the course of enquiry should be
determined, as soon as possible, by the external investigatory body, including instructions to the
prison administration as to necessary measures and steps.
It was emphasised that the protocols and guidelines for the preservation of evidence and forensics
need to be consistent with those in the community.
It should be ensured that the scene of any incident is sealed off immediately, that evidence
is secured and that witnesses are protected against inuence or intimidation. Preservation of
evidence includes the instant securing and safe storage of CCTV footage in order to prevent it from
disappearing or being manipulated.
The experts rebutted frequent claims by prison administrations that sealing off the location of an
incident was not possible in a prison, e.g. in the case of a suspicious death. They pointed to the
fact that on the contrary, while it may be inconvenient for the operation of a prison, it is in fact
easier to seal off and prevent persons from entering the scene of an incident in a prison than in
the community.
497
The experts noted that good management of the prison can be maintained by
ensuring that evidence is secured promptly and professionally by the appropriate authority so that
the scene can then be properly disinfected and returned to use as soon as possible.
Another key element of protocols for incidents are measures to prevent interference in the
investigation and reprisals against victims or witnesses. Ofcers implicated in an incident should
therefore not have any contact with the relevant prisoner or witnesses. Similarly, the experts
considered that any ofcer allegedly implicated in incidents under Rule 71 should also not have
any contact with members of the victim’s family. The experts raised that states, and prison
administrations, need to ensure accountability for any infringements of Rule 71, and that any
alleged infraction should be reported to the independent investigatory body and the prison director.
Rule 34 calls for ‘proper procedural safeguards (…) in order not to expose the prisoner
or associated persons to foreseeable risk of harm’ in the context of healthcare personnel
495
Blanco Abad v. Spain, Comm. No. 59/1996, para. 8.5. See also: Manfred Nowak, UN Covenant on Civil and Political
Rights: CCPR Commentary (2nd ed.), Kehl am Rhein, Engel Verlag, 2005, p. 434.
496
Special Rapporteur on Torture report 2013, A/68/295, para. 65.
497
They noted the example of a fatality on the road, requiring the closure of the road.
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documenting and reporting signs of torture or other ill-treatment. The experts noted the link to Rule
57(2) which calls for protection from reprisals in the context of complaints.
This may imply the temporary transfer of any relevant ofcer to a different part of the facility, or
even to a different prison. The experts noted that it may be necessary to move the alleged victim
and others (if reprisals are feared on a larger scale); however, it was cautioned that this will usually
have the effect of punishing the victim and experts noted risks of retaliation during the transfer/
transport itself which need to be prevented. The UN Special Rapporteur on Torture recommended
to take into account witness protection programmes ‘that fully cover persons with a previous
criminal record and staff’.
498
Both the UN Special Rapporteur on Torture and the UN Committee against Torture have
recommended that those potentially implicated in deaths, injuries or torture/ill-treatment ‘should
immediately and for the duration of the investigation be suspended, at a minimum, from any
duty involving access to detainees or prisoners because of the risk that they might undermine or
obstruct investigations’.
499
The experts noted that the modalities of the enquiry by the external, independent body go beyond
the remit of the SMR, and referred to the Principles on Effective Investigation and the Principles
on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions
and the UN Istanbul Protocol (1999) Manual on the Effective Investigation and Documentation of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
500
for guidance. The
experts also recommended the Council of Europe document, Effective investigation of ill-treatment
– Guidelines on European standards, for further guidance.
501
Impediments documented with regard to the investigation of cases of torture included fear of
reprisals which impede the ability to gather evidence, lack of effective legal representation for
victims, failure to follow a protocol of investigation, lack of a systematic approach to investigations
and lack of enforcement of penalties handed down where violations were established.
502
Outcome of investigations
Principle 34 of the UN Body of Principles
503
stipulates that: ‘[t]he ndings of such inquiry [into the
cause of death or disappearance] or a report thereon shall be made available upon request, unless
doing so would jeopardize an ongoing criminal investigation’.
The experts pointed to the view of the UN Committee against Torture that the family of the
deceased should be informed of the outcome of an investigation.
504
They shared the assessment
of the Special Rapporteur on Torture that information related to the circumstances surrounding
498
Special Rapporteur on Torture report 2013, A/68/295, para. 66, with reference to Commission on Human Rights, 60th
Session, Torture and other cruel, inhuman or degrading treatment or punishment: Report of the Special Rapporteur,
Theo van Boven, 23 December 2003, E/CN.4/2004/56, para. 40.
499
Special Rapporteur on Torture report 2013, A/68/295, para. 66, referring to Principle 3(b) of the Principles on Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). CAT
SMR revision observations, CAT/C/51/4, para. 44.
500
See respective recommendation in IACHR Report on Persons Deprived of Liberty, para. 518.
501
Council of Europe, Effective investigation of ill-treatment: Guidelines on European standards, Strasbourg, 2009.
502
SPT Report on visit to Argentina, CAT/OP/ARG/1, para. 104.
503
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.
504
CAT SMR revision observations, CAT/C/51/4, para. 42.
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the death of a person in custody needs to be ‘made publicly accessible, considering that public
scrutiny outweighs the right to privacy unless otherwise justied’.
505
It is also a responsibility of the prison administration to ‘systematically identify and collect the
patterns of deaths for further examination by independent bodies’.
506
505
Special Rapporteur on Torture report 2013, A/68/295, para. 65.
506
Special Rapporteur on Torture report 2013, A/68/295, para. 65.
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Annex
List of participants
1
Expert Meeting on the Implementation of the Revised Standard Minimum Rules
for the Treatment of Prisoners (Nelson Mandela Rules), 7-8 April 2016
Abi Dymond Omega Research Foundation
Agnes Venem Human Rights Centre, University of Essex
Alison Hannah Penal Reform International
Andra Nicolescu Anti-Torture Initiative
Andrea Huber Penal Reform International
Chontit Chuenurah Thailand Institute of Justice
David Fathi American Civil Liberties Union
Debra Long University of Bristol
Dirk van Zyl Smit University of Nottingham
Haitham Shibli Penal Reform International, MENA Office
Ilvija Pu¯ ce European Committee for the Prevention of Torture
Kimmett Edgar Quaker Representative
Lorna McGregor Human Rights Centre, University of Essex
Luciana Pol Centro de Estudios Legales y Sociales
Mary Murphy International Committee of the Red Cross (observer status)
Marzena Ksel European Committee for the Prevention of Torture
Michael Neurauter European Committee for the Prevention of Torture
Miriam Minder Switzerland
Nick Hardwick Former HMI Prisons Chief Inspectorate
Nigel Rodley Human Rights Centre, University of Essex
Olivia Rope Penal Reform International
Philipp Meissner UN Office on Drugs and Crime
Robert Husbands Office of the High Commissioner for Human Rights
Sharon Critoph Independent expert
Sharon Shalev University of Oxford
Stefan Enggist World Health Organization
Stephanie Selg Organization for Security and Co-operation in Europe
Taghreed Jaber Penal Reform International, MENA Office
Will Thurbin United Nations Office for Project Service
Yuval Ginbar Amnesty International
1. The attendees participated in their personal capacity and did not necessarily represent their organisations.
