The COVID-19 pandemic has affected the lives of millions of individuals around the world. As national and supranational authorities have attempted to confront uncertainties raised by the crisis, people have seen their liberties restricted through measures such as social distancing, lockdowns, and bans on various activities. This situation has been especially worrisome for certain vulnerable groups, notably persons deprived of their liberty, who have been confronted with dramatically precarious situations all the while access to places of detention for monitoring purposes has been severely limited as well.
To mitigate the consequences of COVID-19 restrictions on prison populations, the Organization for Security and Co-operation in Europe (OSCE) Office for Democratic Institutions and Human Rights, in collaboration with the Association for the Prevention of Torture, recently published a document providing National Preventive Mechanisms (NPMs) with practical guidance on ways to effectively pursue their mandate during the sanitary crisis. The guide aims to clarify the challenges faced by NPMs during COVID-19 while identifying appropriate solutions that would enable these mechanisms to adapt their working methods to the current situation.
The mandate of NPMs is enshrined in the UN Optional Protocol to the Convention against Torture (OPCAT). This Protocol obliges States to periodically visit and inspect places of detention to ascertain whether detainee’s rights and safeguards (particularly their right to life and the prohibition of torture or ill-treatment) are properly observed at the local and national level. These mechanisms, which cooperate extensively with the Subcommittee on Prevention of Torture, and the Special Rapporteur on Torture, have played a central role in tackling the human rights repercussions of the pandemic. Indeed, upon ratification of the Optional Protocol, States are obliged to grant these monitoring bodies unrestricted access to all their detention facilities.
However, multiple States including New Zealand and South Africa have restricted access to their detention facilities, thereby limiting the ability of NPMs to carry out their monitoring role. Although visits from the Subcommittee of Prevention of Torture may temporarily be denied by local authorities under exceptional circumstances, such authorities cannot refuse or restrict visits by NPMs. To clarify these international regulations, the recently published ODIHR-APT guide reminds national authorities that NPMs alone ‘retain full discretion’ in organising or interrupting visits.
Measures to reduce the spread of the virus in closed facilities (such as prisons, immigration or pre-trial centres, psychiatric or juvenile institutions, social care homes, or compulsory rehabilitation centres) have faced numerous challenges and their implementation has remained limited. Factors impairing the adequate enforcement of protection policies include a lack of appropriate hygiene equipment, the insalubrity of infrastructure, prison overpopulation, and insufficient medical facilities or funding. Persons deprived of their liberty not only face a higher risk of contracting the virus but are also more likely to encounter serious medical complications due to a lack of appropriate health infrastructure and insufficient medical personnel in detention facilities. Since a significant part of the prison population is subject to pre-existing medical conditions, their lives are put at increased risk. Meanwhile, the failure of governments to protect or treat these individuals against life-threatening diseases can amount to ill-treatment and result in arbitrary deaths. Here it must be noted that discrimination against individuals in need of healthcare is strictly prohibited by international law, regardless of any national state of emergency.
The United Nations (UN) Special Rapporteur on Extrajudicial, Summary or Arbitrary Killings has reaffirmed that the right to life and the prohibition against torture are non-derogable, and that arrangements must be made to ensure States comply with their obligations to protect persons deprived of their liberty. Such initiatives could take the form of alternatives to detention and pre-trial detention, a reduction in the maximum occupancy of prisons, the distribution of appropriate and sufficient hygiene supplies, or even the release of ‘prisoners whose incarceration is illegal or arbitrary’ such as those who committed low-level crimes or who are incarcerated due to immigration issues.
Although it is clear that unique measures may be required to slow the transmission of the virus in detention facilities, these restrictions must strictly comply with States’ human rights obligations. The ‘disruptive effect’ of COVID-19 restrictions on detainees is acknowledged by several UN organs, which state that such limitations can only be imposed when ‘necessary, evidence-informed, proportionate…and non-arbitrary’. Nevertheless, human rights abuses have periodically been reported in closed facilities and violations of judicial safeguards have similarly been flagged. These include a reduction in detainees’ visitation rights along with a decrease in access to purposeful activities (such as work, recreation, education, and outdoor exercise) and medical care. In addition, the abusive resort to solitary confinement, the use of force and punishment to prevent uprisings and unrest, as well as the suspension of access to legal counsel and trial may amount to grave violations of States’ international and domestic obligations.
It is clear that NPMs must adjust their strategies to adapt to the unprecedented global situation, while keeping in mind the ‘do not harm’ principle. Adjustments could include strict respect for sanitary rules, the use of protective equipment, and the development of non-contact alternatives. When visiting detention centres, NPMs’ representatives should be able to access all areas of the facility, including quarantine areas and sectors where persons deprived of their liberty have tested positive for COVID-19. Indeed, the risk of harm is particularly high for these individuals, and their testimonies are crucial to understand the implementation of restrictions in the facility. A thorough preparation of the visits is key to ensuring the safety of both NPM staff and detainees. Moreover, NPMs should carefully assess who will take part in such missions, prioritising individuals with strong medical backgrounds (particularly if they have expertise in epidemiology) and excluding persons who are at a higher risk due to their age or pre-existing health conditions.
Given the crucial monitoring role exercised by NPMs, transmission risks should not impair these mechanisms’ access to places of detention. Instead, cautious and creative strategies must rapidly be established on a case-by-case basis to ensure monitoring bodies retain their essential role in safeguarding against torture, degrading treatment, and punishment. Examples of such strategies could include a shift toward shorter visits by smaller delegation groups, special inspections (for instance, following a riot or escape attempts), or more targeted visits (in centres where particularly vulnerable groups are living, such as children or persons with disabilities). If circumstances do not allow for NPMs to conduct in-person visits, alternative methods such as online meetings with detainees, information gathering through interviews, or virtual inspections should be prioritised. However, such remote options must address issues of privacy, independence, consent or confidentiality. While security and health implications of NPM visits must be considered and protection measures must rigorously be applied, their essential monitoring role should not be obstructed during the COVID-19 pandemic.
Featured picture: Prolonged Pretrial Detention in Haiti by Victoria Hazou. Licensed under CC-BY-2.0
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