In this expert blog for PRI, UN Assistant Secretary-General for Human Rights Ilze Brands Kehris says COVID-19 has exposed the urgent need for long-term societal and institutional reform and that human rights must be front and centre of the global response to the pandemic.
In these unprecedented times, Ms Brands Kehris argues that efforts to deliver fair, effective and human rights-compliant criminal justice processes and outcomes must be redoubled and alternatives to detention prioritised to reduce the impact of the virus on people in prison, particularly vulnerable groups.
This blog draws on the remarks made by the Assistant-Secretary General at the international online launch of Global Prison Trends 2020.
This year, PRI and TIJ’s Global Prison Trends report arrives at a crucial juncture, when millions of people around the world are living through extremely difficult times because of the rapid global spread of COVID-19. All our efforts should focus on slowing down its spread and ensuring that all persons, irrespective of their citizenship, migratory, socio-economic or other status, and in particular the most vulnerable, receive the protection and care they are entitled to.
States are responding with broad and sometimes unprecedented measures to safeguard the health and well-being of their populations. However, even in the context of public emergency, all steps taken must be based on the rule of law. During these trying times, efforts need to redouble to deliver fair, effective and human rights-compliant criminal justice processes and outcomes:
- Many courts across the world have temporarily limited the range of matters that can be brought before them during the pandemic. However, States remain legally bound to provide effective remedies to victims of human rights violations, including persons whose rights have been improperly limited through emergency measures designed to combat the pandemic;
- Persons in detention are entitled to have their detention reviewed by a court of law, including during emergency situations;
- Procedural guarantees such as the right to have access to a court to challenge deprivation of liberty, and the right of persons deprived of liberty to be brought promptly before a judge, must continue to be respected.
The COVID-19 crisis occurs in the context of a long-standing general crisis of the prison situation in the world, now exacerbated by the current public health emergency. As the report Global Prison Trends 2020 sets out, 11 million people are currently imprisoned globally, the highest number ever recorded.
A large number of those behind bars are awaiting trial, and some of them have been in pre-trial detention for years. Many are detained in poor conditions in overcrowded prisons and detention centres. 102 countries have reported prison occupancy levels of over 110 per cent. Many detainees are suffering from serious diseases due to the lack of clean drinking water, proper ventilation and other factors due to the failure to uphold minimum standards for detention conditions. This situation poses particularly acute risks in case of an uncontrollable coronavirus outbreak and this poses unprecedented threats to the lives of detainees.
From the onset of the crisis, our Office has been deeply concerned over the impact that the spread of COVID-19 is likely to have on persons deprived of their liberty. The High Commissioner has called on States to examine ways to release those especially vulnerable to the virus – older persons, the sick as well as low risk offenders – and that now is the time, more than ever, to release those detained without sufficient legal basis, including political prisoners, and those detained for critical, dissenting views. Always – but especially now – all those detained arbitrarily should be released and alternatives to detention should be prioritized.
A growing number of countries have taken measures to release prisoners, and we have just heard some positive cases in the introduction, and some serve as good practice examples. However, there are also examples where this practice has led to additional human rights concerns: 1) the release of prisoners who are convicted for serious human rights violations or even war crimes; and 2) large-scale releases except for dissenters and political prisoners. This is a misuse of the urgent need to decongest prisons.
Together with WHO, we have also co-drafted a document issued by the UN Inter-agency Standing Committee on 20 March aiming at addressing the specific issues of persons deprived of their liberty with the responsible services and ministries at the national level.
Our Office has been engaging with national authorities to recall, first of all, the need to comply with international norms and standards regarding the legality, necessity and proportionality of imprisonment: The legal basis for detention, no prosecution for crimes not consistent with human rights law and reduction of the overreliance on pre-trial detention.
Recourse to alternatives to imprisonment must be increased, including replacing detention with non-custodial measures at the sentencing stage. States should also consider implementing schemes of early, provisional or temporary release for those detainees for whom it is safe to do so, taking full account of non-custodial measures as provided for in the UN Standard Minimum Rules on Non-custodial Measures, the ‘Tokyo Rules’; and we should reinforce our advocacy for the implementation of the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, also known as the ‘Bangkok Rules’.
My last point addresses measures which national authorities should take to protect the lives and health of persons who remain in detention, including during pandemics and public health emergencies situations:
- States have a duty to ensure the health care of people in prisons and other places of detention. The Nelson Mandela Rules recall that persons in detention should have access to the same standard of health care as is available in the community;
- This obligation applies to all detainees, regardless of their status. But particular attention should be devoted to those who may have special needs, including women, older detainees, persons with disabilities and juveniles;
- The current context underscores that maintaining health in prisons and other detention centers is in the interest of persons deprived of their liberty, but also the staff of the facility and the community.
We have seen, in many countries, the disproportionate impact of the pandemic on those already living in the margins of society, those in most vulnerable situations, those most discriminated against. Those deprived of their liberty are no exception.
If anything, this pandemic has clearly demonstrated the urgent need for institutional reforms and societal transformation where human rights must be front and center of both our immediate response and in guiding the way forward. It is time for ensuring the long-term view addressing systemic problems as well as the adoption of immediate, health and life saving measures.
This also applies to our criminal justice and penal systems – ensuring respect for human rights and human dignity only makes those stronger.
The report, Global Prison Trends 2020, is an important contribution to this effort. I look forward to continued collaboration with PRI and TIJ as we strive to build fair and effective criminal justice systems that strengthen respect for human rights, reinforce the rule of law and achieve the 2030 sustainable development agenda.