Separation and solitary confinement in the revised 2020 European Prison Rules – First thoughts

The European Prison Rules (and their Commentary) were recently revised by the Council of Europe. The most notable changes arguably concern the rules guiding prison authorities on the separation and solitary confinement of prisoners. This comes at a time where separation has become more commonplace with COVID-19 restrictions in place. The practice of solitary confinement continues to be used across Europe (and beyond) despite increasing recognition of its detrimental psychological and physiological effects, and of the economic costs – as we have documented in our Global Prison Trends series.

In this article written for Penal Reform International, Professor Dirk van Zyl Smit, who was expert adviser to the Council for Penological Co-operation (PC-CP) of the Council of Europe on the revision, shares his first thoughts on what these new limitations on separation and solitary confinement mean for prison management and the human rights of prisoners.

On 1^st July 2020, Committee of Ministers of the Council of Europe adopted several amendments to the European Prison Rules (EPR). One of the key revisions relate to the separation and solitary confinement of prisoners – an issue that remains one of the most contentious in prison management, given the human rights concerns around its practice. It is widely recognised that for the maintenance of safety and security in prison it is sometimes necessary to restrict the contact that prisoners have with other prisoners, or to separate them entirely from the rest of the prisoner population. Separation of prisoners can also be ordered on health grounds, an aspect of prison safety that has become more prominent since the outbreak of the novel Coronavirus.

Separated prisoners are particularly vulnerable to harsh treatment that may impact negatively on their physical or mental health. Thus, separation should never be the norm but should only be used in exceptional circumstances.

The 2006 European Prison Rules contained general restrictions on the use of all special safety and security measures that might impact negatively on prisoners.  The 2006 Rules did not specify, however, in what circumstances prisoners could be separated from others. It did deal briefly with solitary confinement (the most extreme form of separation) as a disciplinary sanction, but was silent about other forms of separation. This void has now largely been filled by the 2020 amendments to the EPR.

Background

Since 2006 there have been several developments in Europe and worldwide, both in the understanding of the deleterious effects of long-term separation and in the provision of standards to guide prison administrators in this regard:

• In 2011 the European Committee for the Prevention of Torture (CPT) evaluated “solitary confinement”, broadly defined to include prisoners who are held separately as a result of a court decision, as a disciplinary sanction, for preventive purposes, or for protection purposes. The CPT set general standards governing all these types of “solitary confinement” and developed standards to govern the procedures and safeguards for each of them.
• In 2015 the General Assembly of the United Nations amended the 1955 UN Standard Minimum Rules for the Treatment of Prisoners. The new Nelson Mandela Rules (as they are now called) include new provisions on solitary confinement which is defined as “confinement of prisoners for 22 hours or more a day without meaningful human contact” (Rule 44). The Nelson Mandela Rules prohibited the use of indefinite solitary confinement, that is the solitary confinement of a prisoner for more than 15 days. In addition, the Nelson Mandela Rules contain a somewhat vague requirement that “any form of involuntary separation from the general prison population” should be authorized by law or regulated by the competent administrative authority (Rule 37). However, this requirement is not directly linked to solitary confinement and the restrictions on its use.

The 2020 amendments to the European Prison Rules build on these developments but adopt a somewhat different approach. The key innovation is the introduction of a new provision, Rule 53A, which is bolstered by important amendments to Rule 53 and Rule 60.

Rule 53A deals with all forms of separation and requires that “prisoners who are separated shall be offered at least two hours of meaningful human contact a day”. It follows from this provision that all prisoners who do not have access to such contact are being held in solitary confinement as defined in the UN Nelson Mandela Rules, and in breach of Rule 53A of the EPR. The revised Rules make provision for solitary confinement, adopting a similar definition to the Nelson Mandela Rules (EPR Rule 60.6a) but only in the form of solitary confinement as a disciplinary punishment. . This is a significant development at a time when detention in conditions akin to solitary confinement has been adopted  in many instances  as a response to COVID-19.  Prisoners who are subject to disciplinary punishment are therefore the only prisoners who, in terms of the European Prison Rules, do not have a right to two hours of meaningful contact a day. The use of solitary confinement as a disciplinary punishment is subject, however, to restrictions on its use. Those restrictions are set out in the amended  Rule 60(6), discussed more fully below.

Separation

An important aspect of the EPR Rule on separation (Rule 53A) is that it fully covers all the types of separation, other than solitary confinement as a disciplinary punishment, which the CPT addresses in its wider discussion of “solitary confinement” in its 2011 standards. This is the case regardless of how prison authorities refer to such separation; it may be called ‘separation’, ‘segregation’, or even ‘solitary confinement’. In other words, where prisoners are separated from others as a result of a court decision, or for preventive or protection purposes, they not only have to have two hours of meaningful human contact a day, but all the other requirements of the EPR have to be met. These include not only those set by Rule 53A but also the requirements of Rule 53, which has been amended to emphasise that all special safety and security measures, of which separation is one, should “only be applied in exceptional circumstances and only for as long as security or safety cannot be maintained by less restrictive means”. Rule 53 also sets out procedures that must be followed for the imposition of all special high security or safety measures, including separation.

In addition to the “two hours of meaningful human contact” requirement, Rule 53A specifies a number of other standards that must be met when prisoners are separated. These include a requirement that “prisoners who are separated shall not be subject to further restrictions beyond those necessary for meeting the stated purpose of such separation” (Rule 53A.d).  Implicit in this rule is the principle of proportionality in the implementation of separation. This principle is developed further in Rule 53A.f, which provides that “the longer a prisoner is separated from other prisoners, the more steps shall be taken to mitigate the negative effects of their separation by maximising their contact with others and by providing them with facilities and activities.” The principle is also reflected in Rule 53.8, which, while applying more broadly to all high security and safety measures, states that “[s]uch measures shall only be based on the current risk that a prisoner poses, shall be proportionate to that risk and shall not entail more restrictions than are necessary to counter that risk.”

Any “decision on separation shall take into account the state of concerned and any disabilities they may have which may render them more vulnerable to the adverse effects of separation” (Rule 53A.b). It is also specified that “cells used for separation shall meet the minimum standards applicable in [the EPR] to other accommodation for prisoners” (Rule 53A.e). Separated prisoners must also be given reading materials and an hour’s exercise a day (Rule 53Ag). They must be visited daily by the director of the prison or by a member of staff acting on behalf of the director of the prison (Rule 53Ah), and retain their right to complain as spelt out in Rule 70 of the EPR, which was also substantially developed in the revised EPR (Rule 53A.j).

Solitary confinement

Solitary confinement, as explained above, is separation with less than two hours a day of meaningful human contact.  As the Commentary to Rule 60.6 notes, there is now strong scientific evidence that separation with such a severe restriction on contact can have a very negative effect on prisoners. Accordingly, solitary confinement may only be imposed as a punishment and even then, its imposition is subject to a range of limitations. In some instances, its use is totally excluded: Rule 60.6.a provides that solitary confinement shall “never be imposed on children, pregnant women, breastfeeding mothers or parents with infants in prison” – a provision that reiterates the principle set down by the UN Committee on the Rights of the Child and the UN Bangkok Rules on women prisoners. It shall also “not be imposed on prisoners with mental or physical disabilities when their condition would be exacerbated by it” (Rule 60.6.b).

Other restrictions are the provision that “[w]here solitary confinement has been imposed, its execution shall be terminated or suspended if the prisoner’s mental or physical condition has deteriorated” (Rule 60.6.b). There is a further restriction on the use of solitary confinement in Rule 60.6.e, which provides: “Where a punishment of solitary confinement is imposed for a new disciplinary offence on a prisoner who has already spent the maximum period in solitary confinement, such a punishment shall not be implemented without first allowing the prisoner to recover from the adverse effects of the previous period of solitary confinement.”

Unlike the CPT standards or the Nelson Mandela Rules, the EPR still do not specify a maximum number of days for which solitary confinement may be imposed. This is unfortunate, as a bright line prohibition is an effective safeguard against abuse. However, in addition to the restrictions mentioned above, Rule 60.6.c contains an important further restriction:

“Solitary confinement shall not be imposed as a disciplinary punishment, other than in exceptional cases and then for a specified period, which shall be as short as possible and shall never amount to torture or inhuman or degrading treatment or punishment.”

Furthermore, Rule 60.6.d requires that “[t]he maximum period for which solitary confinement may be imposed shall be set in national law”. This last rule is significant, for it compels national legislatures to compensate for the failure of the EPR to set an appropriate maximum period of solitary confinement. On this point, the Commentary to the EPR emphasises that a 15-day limit has been set by the Nelson Mandela Rules, while the CPT has repeatedly emphasised its own 14-day limit – standards which member States are obliged to bear in mind. If national legislatures were to set a maximum of longer than the 15 days prescribed by the Nelson Mandela Rules, they are likely to face a challenge before the European Court of Human Rights, which may well hold that a longer maximum period would amount to inhuman or degrading punishment and thus contravene Article 3 of the European Convention on Human Rights. In coming to such a conclusion the Court would be able to rely on the scientific evidence quoted in the Commentary. This includes the “Statement on Solitary Confinement” in which the General Assembly of the World Medical Association, after reviewing the medical evidence, declared in October 2019 that, in line with the Nelson Mandela Rules, solitary confinement should never exceed 15 consecutive days

Meaningful human contact

The amended European Prison Rules present several difficult interpretative challenges. None of these is as complex as the term, “meaningful human contact” which the European Rules share with their UN counterpart, the Nelson Mandela Rules. Neither instrument specifies what the term means, but some indications are beginning to emerge of how it is likely to be used in practice. First indications for Europe come from the CPT, which has applied the concept of ‘meaningful human contact’ in a number of its reports on national prisons. In so doing, the CPT has explicitly adopted the same approach as the “Essex Paper 3”, published by Penal Reform International and the Human Rights Centre of the University of Essex, based on deliberations of a group of independent experts on the interpretation of the Nelson Mandela Rules. As the Commentary to the EPR notes, the CPT has the view of the Essex Paper that meaningful human contact refers to “the amount and quality of social interaction and psychological stimulation which human beings require for their mental health and well-being. Such interaction requires the human contact to be face to face and direct (without physical barriers) and more than fleeting 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.” This exposition is still only a starting point. In due course, national prison systems will have to produce detailed guidance for their staff on how to provide daily meaningful human contact for their prisoners. Failure to do so may well result in what was intended to be mere separation to be regarded by monitoring bodies’ or courts as an illegitimate form of solitary confinement.

In conclusion, the importance of this new web of rules can be illustrated by a single example: The risk that a prisoner has COVID-19 is undoubtedly a ground for separating such a prisoner. On the other hand, it is clearly not a ground for subjecting such a prisoner to solitary confinement.  The prisoner who has, or may have, COVID-19 should therefore have access to at least two hours of meaningful human contact daily and also all the other rights and facilities set out in Rule 53A. Prison authorities will have to think carefully how to do so, as failing to provide these rights and facilities for prisoners in COVID-19 separation will expose the authorities to allegations that they are meting out inhuman and degrading treatment to these prisoners. More positively, the amended EPR may encourage widespread reforms in the way in which prisoners are treated in ‘the prisons within a prison’ in which they are segregated. This could lead to a long-term reform of prison regimes throughout Europe.