FIDH: States Bear Direct Responsibility for the Health of Individuals in Their Custody

While the cases of COVID-19 are multiplying in prisons, detention centers and in places of custody, faced with the risk of a massive spread of the virus behind the walls, FIDH (the International Federation for Human Rights) calls for urgent measures to be taken to preserve the health of detainees, and for the release of the most vulnerable, of those detained for minor crimes and on remand custody, and of those whose detention is contrary to international norms.

In times of crisis, governments have an obligation to protect those who are most vulnerable. Prison populations, confined to detention facilities that can easily become virus hotspots, are among those most vulnerable to the threat of the COVID-19 pandemic. This is a particular risk where collective cells and overcrowding are the norm, where social distancing is impossible to achieve, where many detainees are awaiting trial, and where the prisons’ health services are unprepared.

Over the past weeks, throughout the countries and regions where the COVID-19 virus has spread, many prison inmates, staff and/or caregivers have tested positive for the virus. Hundreds of inmates with virus symptoms have been “confined”. Tensions in prisons have also increased in the context of the spread of the virus, in reaction to the overcrowding of prisons, to the lack of personal hygiene or health services, or to restrictions on visits —notably when those visits enabled adequate food supply-, or other activities.

While every prison, detention centre and place of custody constitutes a potential epidemiological outbreak, the spread of the virus in places of detention will be inevitable unless urgent measures are taken to mitigate this risk.

Echoing concerns expressed by the UN High Commissioner for Human Rights, the African Commission on Human and People’s Rights, the Council of Europe Commissioner for Human Rights, the Inter-American Commission on Human Rights, and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in its COVID-19 Statement of Principles, FIDH calls on governments to relieve congestion in prisons by releasing vast numbers of prisoners through various means, including temporary or early releases and amnesties; home detention and commutation of sentences.

Such measures should be consistent with States’ obligations under the UN Standard Minimum Rules for the Treatment of Prisoners (revised and adopted as the “Nelson Mandela Rules”) which detail measures aimed at ensuring adequate personal hygiene, health, and safety of prisoners.

We welcome the move by a number of countries, including Argentina, Chile, Ethiopia, Indonesia, Iran, Tunisia and Turkey to begin releasing prisoners in an effort to reduce overcrowding and prevent the spread of the virus. These efforts however have been inconsistent with many of these countries’ human rights obligations and with international institutions’ recommendations.

In countries like China, Egypt, Iran or Turkey, where the policies of mass incarceration of journalists, whistle blowers, human rights defenders, political prisoners or of civilians taking part in demonstrations are in flagrant contradiction with international human rights norms, prison releases have not included these persons.

States should thus follow specific priorities for the releases, that are guided by the vulnerability of the individual detained as well as the motives for his or her detention. As such, priority should be given to the elderly, to pregnant women and to children, to those with underlying health conditions, as well as to administrative detainees, to individuals detained for minor or non-violent offences, and to detainees awaiting trial. In addition, prisoners of conscience, prisoners detained for expressing their opinions, human rights defenders, whistleblowers, and undocumented migrant detainees should be immediately and unconditionally released.

Governments should also ensure that during the COVID-19 pandemic the human rights of all those who remain in detention are upheld. As such, measures adapting the conditions of detention, with regard to food, health, sanitation and quarantine measures, to prevent the spread of COVID-19 within the facilities, should be put in place, to guarantee decent living and health conditions for all detained persons.

Any restrictions imposed on detainees should be non-discriminatory, necessary, proportionate, time-limited and transparent. Measures should not, under any circumstances, justify absolute or solitary confinement. Confinement measures should enable confidential and through distance, meetings of inmates with their families, close companions and lawyers in a confidential manner, while respecting the WHO recommended physical distancing and handwashing protocols. Under the current COVID-19 circumstances, we also recommend that all detainees should have access to time outside of the confines of their cells and be able to utilise recreational spaces available.

Lastly, while States must be able to maintain order and security within prisons and detention centers, measures to prevent riots and restore security conditions in prisons should not empower authorities to resort to the excessive use of force.