Professional Documents
Culture Documents
Number 1
January 2005
Welcome to the first issue of Human Rights and Prison Management, an electronic
newsletter which is intended to complement the handbook A Human Rights
Approach to Prison Management. If you do not already have a copy of the
Handbook it is available in English and nine other languages and can be
downloaded free of charge as a pdf file in several languages from the ICPS website,
www.prisonstudies.org.
We are grateful to the Foreign and Commonwealth Office of the government of the
United Kingdom for financing the production of this newsletter.
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Contents
In the course of our work with the Handbook many people have asked for help in
understanding what the international standards for the treatment of prisoners really
mean. How big should a cell be? How much access to natural light is adequate as a
minimum? In this first edition of the Newsletter we focus on the judicial and
monitoring processes which are helping to define the detail of human rights
standards in prison management.
Click on a title to go directly to the article
Introduction
A message from the Director
United Nations Optional Protocol to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
On 15th November 2004 Argentina became the sixth country to ratify the UN
Optional Protocol to the Convention against Torture …
Regional Courts
National Courts
Forthcoming Issues
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Introduction
I am delighted to introduce the first
issue of the newsletter Human
Rights and Prison Management.
Over the last two years we have received many messages from prison staff and
others who have found the principles in the handbook very useful as a context for
the way they do their work. Many of them have asked for more information about
how to transfer these principles into the detailed work they do every day. They also
regularly ask us to provide examples of good practice from around the world. There
is clearly a demand for updated information on a regular basis about how to manage
prisons within a human rights context. This newsletter is intended to meet that
demand.
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The second reason that we recommend this form of prison management is that it
works. It is a proper and effective way to manage prisons. ICPS has used the human
rights model of prison management as a training tool for prison staff and as an aid for
strategic management in prison systems around the world and the reaction from prison
staff has always been positive. They have always said, “Yes, this approach is relevant
to the daily work that we do in prisons and to the way we treat prisoners”. And in many
cases, in countries as far apart as Chile and Kazakhstan, there is clear evidence that
the implementation of this form of management improves both the professionalism of
staff and the treatment of prisoners.
In the course of our work we became aware that there was an absence of good
source material to which prison managers and prison reformers could refer. Time
and again, we were told by our international partners that they wanted to ensure that
prisons were managed in a humane and professional way but that they needed to
know more about the principles which would allow them to do this. They also
wanted to know how other countries were tackling the problems which they faced
and to learn about examples of good practice. In an attempt to help fill this gap ICPS
regularly publishes material about prison and human rights in several languages.
The handbook was not intended to be the final word on the subject and since its
publication ICPS has received many enquiries seeking further information on the
topics it covers. This newsletter will attempt to address those issues and to keep the
information on standards and examples of international practice up-to-date. For this
reason comments and questions from readers will be most welcome. We
particularly invite comments linked to the forthcoming newsletter themes.
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Launching the Handbook
To date about 70,000 copies of the Handbook have been printed in ten languages.
In a number of countries there have been official events to launch A Human Rights
Approach to Prison Management.
Brazil
South Korea
The government of the Republic of Korea has made a commitment to reduce the
use of imprisonment. One practical expression of this commitment has been
government support for the translation into Korean of the handbook. This was
formally launched at a seminar in Seoul in September 2004 which was attended by
around 100 people, including senior prisons personnel, officials of the Corrections
Society, human rights activists and the media. Copies of the handbook have been
distributed to all the country’s prisons.
Japan
Historically Japan has always had a low rate of imprisonment but this is now
increasing sharply. In 1998 there were just over 50,000 prisoners; by 2002 this had
risen to 65,000. In September 2004 it stood at 76,000 and was rising by 1,000 per
month. Until recently prisons were largely closed to any outside influence. This has
begun to change. Over the last two years there has been a slowly developing
rapport between the Ministry of Justice and bodies such as the Japan Federation of
Bar Associations (JFBA), which has for many years been one of the most active
groups in the campaign for prison reform. One of the vehicles used by the Ministry
for this discussion has been the semi-official Japan Correctional Association, which
arranged for the translation and publication of the handbook in Japanese. This took
place in Tokyo in September 2004 as part of a day long public symposium on prison
reform, which was attended by over 100 persons and attracted considerable media
attention. Representatives of the Ministry of Justice took and active part in the
symposium, apparently the first time they had ever taken part in a major public
event of this nature.
China
Not surprisingly given its total population, China has one of the largest prison
populations in the world, although its rate of imprisonment is relatively low. The
prison authorities have shown an interest in the Chinese version of the handbook
and the opportunity was taken to launch this by means of a seminar on human
rights and prison management organised by the Correctional Services Department
of the Hong Kong Special Administrative Region in August 2004.
United Nations
The United Nations Office on Drugs and Crime distributed copies in all available
languages to the representatives of member states attending the 13th session of the
UN Commission on Crime Prevention and Criminal Justice in Vienna in May 2004.
The Office of the High Commissioner for Human Rights has distributed copies in
several regions. The OHCHR Field Office in Colombia organised a two day high
level seminar in Bogotá in October 2004 with the handbook as its theme.
The United Nations Latin American Institute in Costa Rica has been involved in
circulating copies to all its member states.
Council of Europe
In November 2002 the Council of Europe distributed copies to all those attending
the 13th meeting of the Directors of Prison Administration in all Council of Europe
member states.
The OSCE Office for Democratic Institutions and Human Rights has used the
handbook extensively in the Trans Caucasus.
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International Standards – what do they really mean?
An introduction to regional monitoring and judicial bodies
The Handbook sets out the framework of international standards and covenants
which are relevant to the management of prisons. Those international standards
have their origin in the Universal Declaration of Human Rights and in the main
international instruments which flow from it, such as the International Covenant on
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. Each of these two main instruments is legally binding on all states
which have ratified or acceded to them and they both contain references to the
treatment of persons who are deprived of their liberty. There are also regional
treaties, such as the African Charter on Human and Peoples’ Rights, the American
Convention on Human Rights and the European Convention on Human Rights.
Those broad principles are further elaborated through more specific and more
detailed guidelines set out in, for example, the United Nations’ Standard Minimum
Rules for the Treatment of Prisoners and the Basic Principles for the Treatment of
Prisoners. At a regional level those international standards are supplemented
through regional instruments such as the European Prison Rules.
Each of these judicial and monitoring bodies constitutes a useful reference point on
the extent to which actual prison practice in individual countries meets international
standards.
The judicial bodies can only rule on the cases that are brought before them. The
regional monitoring bodies, however, have a more pro-active role in examining the
observance of human rights standards by individual countries. The most
comprehensive model of a regional monitoring body is that established by the 46
countries which make up the Council of Europe. The Council of Europe’s Committee
for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) has a
remit which authorises it to inspect and report on conditions of detention in any of
the member states. Elsewhere, the African Commission on Human and Peoples’
Rights has appointed a Special Rapporteur on Prison Conditions.
It is important to note that the involvement of all of these judicial and monitoring
bodies can be beneficial to prison staff. Any initiatives which raise standards in the
prison environment will improve the working conditions and environment for staff.
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United Nations Optional Protocol to the Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
On 15th November 2004 Argentina became the sixth country to ratify the UN
Optional Protocol to the Convention against Torture. Not only is it the first
Latin American country to do so but it is also the first federal state worldwide
to commit itself to the proposed UN inspection system.
In December 2002 the United Nations took a major step towards establishing its
own mechanism for monitoring the treatment of persons under any form of detention
when it agreed the Optional Protocol to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. Article 1 of the Optional
Protocol states that:
The Protocol will come into force once twenty countries have registered their
instrument of ratification or accession to it with the UN Secretary General. There are
29 signatories to the Protocol; with the recent announcement from Argentina there
are now six states which have ratified or acceded to it (Albania, Argentina,
Denmark, Liberia, Malta and the United Kingdom).
The current status of ratification of all UN Human Rights instruments may be viewed
at http://www.ohchr.org/english/countries/ratification/index.htm.
Article 17 of the Optional Protocol further requires each State Party to establish
national preventive mechanisms:
The Optional Protocol expects that these preventive monitoring agencies, both
international and national, should be given unhindered access to all places of
detention.
Readers of this newsletter should encourage initiatives in their own countries to set
up these national monitoring bodies and to ratify the Optional Protocol.
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Regional Courts
African Court on Human and Peoples’ Rights
The most recent of the regional Human Rights Courts to be established is the
African Court on Human and Peoples’ Rights which came into being on the 25th
January 2004 when Comoros became the fifteenth State Party to ratify the Protocol
to the African Charter on the Establishment of the African Court on Human and
Peoples’ Rights.
Unlike the Inter-American and European Courts the African Court was not included
in the original Charter (Banjul 1981) but was established as a result of the
subsequent Protocol of 1998.
Decisions on the location of the Court and the appointment of judges were originally
due to be made at the Annual Summit of the Organisation of African Unity in July
2004. In the event, the assembly decided to defer these decisions to the next
assembly meeting at the end of January 2005 pending further examination of the
implications of its decision to integrate the Human Rights Court with the proposed
African Court of Justice. There are fears that this will lead to further delays since the
instrument establishing the court of justice has so far only received four of the 15
ratifications required to bring it into force. The final decision on the appointment of
judges to the Court on Human and Peoples’ Rights was also deferred to allow time
for more nominations to be made.
States who have ratified the protocol, the African Commission On Human and
Peoples’ Rights and certain recognised inter-governmental organisations are
entitled to bring cases before the Court. In addition, Article 5(3) of the protocol
provides limited rights for NGOs with observer status before the Commission and
individuals to bring cases before the Court. Such cases will only be accepted,
however, where the State Party has declared its acceptance of the competence of
the Court to consider them either at the time of initial ratification or subsequently.
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The rulings of the European Court of Human Rights, together with the reports from
the Council of Europe’s Committee for the Prevention of Torture (CPT), go some
way towards providing a detailed interpretation of the generic standards contained in
international covenants and rules, such as the UN Standard Minimum Rules.
In recent years there have been a number of significant rulings from the Court
indicating violations of six different articles of the European Convention on Human
Rights by the prison administrations in various countries across Europe.
Several violations of Article 3 (inhuman and degrading treatment) provide a
commentary on what constitutes acceptable conditions of detention. In 2001 the
Court found that Greece had violated Article 3 by holding Donald Peers in a shared
cell with no windows and no ventilation and in which he had to use the toilet in front
of his cell-mate. The UK was also found to have violated Article 3 by holding Adele
Price, a thalidomide victim with no arms or legs, for seven days in a cell which was
not adapted in any way to her disabilities. A case against Denmark for holding a pre-
trial prisoner (Rohde) in solitary confinement for almost a year was declared a
violation in 2003.
In a case concerning the length of time in pre-trial detention, the Czech Republic
was found to be in violation of Article 5 (3) (right to liberty) by holding a prisoner in
pre-trial detention for more than four years.
Recently the Prison Service in England and Wales has had to change the way in
which it conducts its disciplinary proceedings for prisoners because of a ruling from
the European Court. In the case of two prisoners, Ezeh and Connors, the Court
ruled that the UK had violated the right to a fair trial in cases where the prisoner
governor had imposed a punishment of reducing the remission of sentence which
the prisoners were entitled to expect. Since the ruling all disciplinary cases which
might lead to a punishment of loss of remission are now referred to an independent
adjudicator (judge).
There have also been several recent rulings in the European Court regarding
prisoners’ correspondence, both with family members and their legal
representatives. In 2000 Italy was found to have breached Article 8 of the European
Convention by restricting a prisoner’s correspondence whilst both France (1999)
and the Netherlands (2002) have been found in violation of the same article by
interfering with prisoners’ correspondence with their legal representatives and other
agencies, including the European Commission on Human Rights.
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In the Americas the member states of the Organisation of American States have
established two organs to ensure compliance with the commitments made by those
member states who are party to the American Convention on Human Rights (‘Pact
of San José”). They are the Inter-American Commission on Human Rights and the
Inter-American Court on Human Rights. The latter was created in 1978 with the
deposit of the eleventh instrument of ratification of the Convention.
Unlike the European Court and, to a limited extent, the African Court, individuals
have no right of direct access to the Inter-American Court. Under Article 61(1) of the
Convention “[o]nly the States Parties and the Commission shall have the right to
submit a case to the Court.” Cases involving individuals can only be bought to the
Court’s attention, therefore, where they are adopted by the Commission or a State
Party.
Most American states have agreed to recognise the jurisdiction of the Court as
binding. A small number of countries have chosen only to consult the Court
regarding the interpretation of the American Convention on Human Rights and other
treaties concerning the protection of human rights in the American states.
In extreme and urgent cases the Court can issue a provisional ruling ordering
immediate remedial measures to be taken pending the outcome of its full
deliberations. On 22nd November 2004 the Court issued such a provisional ruling
with regard to a case concerning prison conditions in the state of Mendoza,
Argentina, which had been brought to its attention by the Inter-American
Commission. The Commission’s report drew attention to well-documented concerns
over the levels of violence – including several deaths – during the year and the
severe living conditions and lack of activity for prisoners. The Court ordered the
State to take immediate action to protect the safety of prisoners and to report to the
Court on the action which it takes.
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National Courts
In many countries the rulings of the national courts also help to provide a more
detailed interpretation of general human rights standards with regard to the
treatment of prisoners, especially where those standards are incorporated into the
constitution of the country. One example of this system may be found in many Latin
American countries which have established a formal Constitutional Court. The
relevant authorities (National Human Rights Institution, Defensoría or Procuraduría,
for example) may apply to the Court if they feel that the treatment of prisoners
constitutes a breach of the constitution or national legislation.
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In 1996 the African Commission on Human and Peoples’ Rights established the
position of Special Rapporteur on Prisons and Conditions of Detention in Africa. The
Special Rapporteur is authorised to visit countries in order to obtain first hand
information and to submit detailed reports on the conditions which he/she finds.
Those Special Rapporteur’s observations, together with the comments of the
government are then published in three of the four official languages of the African
Union, English, French and Portuguese. Some of the reports are also published in
Arabic.
In the course of a country visit the Special Rapporteur may visit any place where
people are imprisoned or detained. He/she will meet with the authorities of the
country, the Heads of the Prison Service, human rights non-governmental
organisations and representatives of civil society. He/she also has confidential
interviews with prisoners and discussions with prison staff and officials.
As well as submitting a formal report for publication, the Special Rapporteur may
make a number of on-the-spot recommendations on the most pressing problems.
Many of the reports of the Special Rapporteur can be downloaded from the website
of Penal Reform International at
www.penalreform.org/english/theme_rs.htm#reports.
The reports of the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) generally represent a good source of
guidance on the practical application of international standards in prison conditions.
Taking as an example the amount of living space per prisoner, the CPT has tended
to conclude latterly that a cell of 8 or 9 square metres is appropriate for single
occupancy. Where toilet facilities are located in the cell the CPT recommends that
these should be adequately screened, especially where cells are occupied by more
than one person.
Many of the CPT’s reports, and government responses to them, can be downloaded
in English and French from the CPT website: www.cpt.coe.int. Some materials are
also available in Russian and Spanish.
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There are many different models with differing terms of reference. In South America,
in particular, they tend generally to be referred to as Defensoría (or Defensor) del
Pueblo whereas elsewhere they are usually known as National Human Rights
Institutions or Commissions. The National Human Rights Institutions Forum (NHRI)
currently lists almost 100 national organisations recognized as functioning in this
capacity.
As well as their national work the Institutions have begun to come together on a
regional and international basis to look at issues of common interest. In October
2004 the African National Human Rights Institutions held their first conference in
Addis Ababa.
Further information on the work of all of these groups, both regional and national,
may be found on the website of the National Human Rights Institutions Forum at
http://www.nhri.net/. The site also has French and Spanish language versions.
1
CPT/Inf (2004) 6, Rapport au Gouvernement de la République française relatif à la visite effectuée en France
par le Comité européen pour la prévention de la torture et des peines ou traitements inhumains ou dégradants
(CPT), du 11 au 17 juin 2003
National Human Rights Commission of the Republic of Korea (South Korea)
The terms of reference of the Commission allow it to enter any place of detention in
order to investigate cases brought to its attention. Where it considers that a case is
urgent it has the right to demand action to provide immediate relief pending its
formal decision.
In its first year of operation the Commission dealt with more than 2,800 complaints
alleging violations of human rights of which 1,113 concerned the correctional
services. The major grounds of complaint raised by those in detention included
abuse of punishment, cruel treatment, improper medical treatment, restriction on
sending letters or writing, and the use of abusive language by prison guards. A
further 839 complaints concerned the police, many alleging illegal detention.
The website for the National Human Rights Commission may be found at:
www.humanrights.go.kr/eng/index.jsp
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In carrying out their investigations the Commission may call for documents or
reports from the Central Government or any State Government or authority and may
interview anyone it considers necessary.
The Human Rights Commission has been particularly active in investigating the
treatment of persons held either in prison or police custody and they have requested
immediate action to correct a number of abuses. Amongst their specific concerns is
the situation of pre-trial prisoners who constitute a high proportion of the prison
population. The Commission has insisted on strict adherence to Supreme Court
rulings aimed at preventing excessive periods of pre-trial detention.
One of the earliest, important steps taken by the Human Rights Commission was to
establish a sound procedure for reporting and investigating deaths and rapes in
custody, which includes a requirement for all such incidents to be reported to the
Commission within 24 hours. More recently the Commission has been concerned at
the treatment of mentally ill prisoners.
In addition to the National Human Rights Commission India also has a network of
State HR Commissions.
Further information on the work of the Indian National Human Rights Commission
may be found on its website: http://www.nhrc.nic.in/
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In many countries (particularly in South and Central America) the official bodies
dealing with human rights issues are generally known as Defensoría del Pueblo or
Ombudsman.
In Colombia the Defensoría has staff who deal specifically with prison issues. They
have the authority to enter prisons, to speak confidentially with prisoners and staff,
and to report on their findings to the relevant authorities.
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Some countries have also developed formal systems of prison inspection which are
independent of the prison administration. One of the best examples of this is the
system in use in England and Wales.
The English inspectorate has the authority to visit any prison at any time either to
carry out routine inspections or to look at matters of particular concern. Although
they cannot demand changes they have considerable influence because their
reports are made available to the public. The reports can be downloaded at
www.homeoffice.gov.uk/justice/prisons/inspprisons/inspection.html.
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Forthcoming issues
The next two issues of Human Rights and Prison Management will focus on:
We very much welcome your comments and contributions on these and any other
issues. We expect to send out the Newsletter on Administration and Personnel in
March 2005.
If you have any contributions or suggestions to make please contact us directly Click
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