States must protect and respect the rights of older persons deprived of liberty
26th October 2022
The proportion of older persons in prison is rising in many countries but their needs are mostly overlooked, leading to human rights violations. In this blog, Claudia Mahler, UN Independent Expert on the enjoyment of all human rights by older persons, presents her latest report dedicated to older persons deprived of liberty.
On 19 September 2022, I presented my report to the 51st session of the Human Rights Council, which includes thematic analysis of the situation of older persons deprived of their liberty in different contexts. I wanted to highlight this topic because I felt that older persons are totally overlooked in many aspects of society, including in prison settings and other places of deprivation of liberty. There is also a growing proportion of older persons in prison globally who need increased attention.
My report examines what deprivation of liberty means from the perspective of older persons and how it affects the full enjoyment of their human rights. It analyses some of the underlying causes of deprivation of liberty of older persons and the human rights challenges and risks in criminal justice systems, but also in immigration-related detention and care settings, and it suggests ways that States can protect the human rights of older persons deprived of their liberty.
The right to personal liberty is a core human right for all people, including in older age.
The right to personal liberty is a core human right for all people, including in older age. Older persons are deprived of liberty when confined to a specific space or placed in a public or private institution against their wishes, without their free and informed consent or without permission to leave at will.
Older persons can only be deprived of their liberty in circumstances clearly established by international human rights law and any restrictions must be necessary and proportionate to the legitimate objective. The restriction or denial of the right to personal liberty may be considered arbitrary when unjustified, disproportionate, discriminatory, or where due process has not been afforded.
In the context of criminal justice, States must ensure older persons are treated with dignity and that their specific needs with respect to age, health and disability status are taken into consideration, in line with the UN Nelson Mandela Rules and the UN Bangkok Rules in the case of older women. Special attention should be paid to applying the principles of necessity and proportionality when the deprivation of liberty is decided, considering the severity of the offence, and whether the dignity of older persons is being protected based on their age and intersectional factors.
“accelerated ageing” has led many criminal justice systems to consider people to be “older” by the age of 50 or 55
The concept of older age as a social construct and the significant heterogeneity of older persons as an age group should both be considered when any decision to deprive older persons of their liberty is taken and in determining whether they have access to necessary services and other opportunities. A detained person may display biological signs of ageing earlier than those who continue living in their communities as a result of poor socioeconomic and health backgrounds, along with the harmful effect of imprisonment on health and well-being, which tend to accelerate the ageing process in prison. This phenomenon of “accelerated ageing” has led many criminal justice systems to consider people to be “older” by the age of 50 or 55.
Ageism and age discrimination are underlying most situations of deprivation of liberty for older persons, and around the world, ageist attitudes have led to discriminatory laws, policies and practices. Healthcare in prisons, for example, is usually basic and does not adequately meet the needs of older persons. Ageism and age discrimination have impacted the structure of healthcare in prisons and how services are delivered.
One way to combat some of these challenges is through independent monitoring of places of deprivation of liberty. National laws and policies are needed which allow for monitoring mechanisms that are accessible to older persons and which can assess and determine the status of deprivation of liberty of older persons, on a case-by-case basis. In the case of any complaints or allegations of human rights violations by older persons deprived of liberty, States must carry out effective, prompt, thorough and impartial investigations, including related to their right to life, right to health, arbitrary detention, and torture and other ill-treatment.
Older persons detained within criminal justice systems are still an invisible group among the incarcerated population.
Intersectional factors such as sex, gender, gender identity and sexual orientation, disability, race, ethnicity and class should also be taken into account. The intersection between such factors and older age may exacerbate older persons’ risk of being deprived of their liberty because of legal and policy frameworks in force, and also shape the experience of older persons in detention, placing them at heightened risk of discrimination, isolation, ill-treatment and violence.
Gender discrimination, in intersection with ageism, has a particularly unique and aggravating effect on the right to personal liberty of older women. Older women in prison are often abandoned by their families and do not receive any support. This raises an important question as to how their specific needs can be met, including to prepare them for release and a future in the community.
Older persons detained within criminal justice systems are still an invisible group among the incarcerated population. Among the State submissions I received, only six countries included evidence that they collect and publish data about older persons in detention facilities. Many countries do not disaggregate data on people in prison by age and the proportion of older persons in prison varies between countries, but available data show a steady increase in the number of older persons in prison in several countries.
available data show a steady increase in the number of older persons in prison in several countries.
Detention facilities are often not designed to accommodate older persons or to respond to their needs as they are generally planned for younger detainees, who constitute the majority of the global prison population. Imprisoning older persons may also involve higher costs due to complex medical conditions and disabilities and correctional staff without adequate training struggle to identify common age-related health problems and needs, often resulting in discrimination and abuse, ill-treatment and violence.
Finally, my report sets out a list of recommendations for States to improve the protection of the human rights of older persons deprived or at risk of being deprived of their liberty, including among other things, the systematic collection of data disaggregated by age and other factors to inform laws, policies and practices with regard to the situation of older persons in all places of detention, and examining the possibility of non-custodial alternatives at all stages of detention, including the possibility of humanitarian or compassionate release.