23 Principles of Treatment of Prisoners

Prof. Abhishek Sudhir

Table of Contents

Learning Outcomes
Introduction (Voice Over)
List of International/Regional Conventions/Instruments on Prisons/Prisoners
Principles on the treatment of Prisoners
1. Manual on Human Rights Training for Prison Officials
Summary

1. Learning Outcomes

To give students an overview of the different international and regional declarations, conventions and charters guaranteeing the right against torture;
By the end of the module students will have an understanding of international human rights law on the right against torture.

2. Introduction (Voice Over)

In international law, prisoners’ rights can be found in number of treaties and instruments. Most of them came into force post the world wars. The two world wars had a profound impact on contemporary international law as there were widespread denial of civil and political rights and liberties of people on grounds of religion, race, sex etc. The systematic use of violence included murders, slavery, genocides, rapes, confiscation of properties etc. The decades following these wars saw radical changes in all areas of international laws and prisoners’ rights are no exception. Today, there are numerous international treaties and instruments which provide the codes by which the prisoners should be treated.

3. International/Regional Conventions/Instruments on Prisons/Prisoners

Basic principles for the treatment of prisoners, 1990 (Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990)
Body of principles for the protection of all persons under any form of detention or imprisonment, 1988 (Adopted by General Assembly resolution 43/173 of 9 December 1988)
Code of conduct for law enforcement officials, 1979 (Adopted by General Assembly resolution 34/169 of 17 December 1979)
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (Entered into force on 26 June 1987)
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984
European Prison Rules, 1987, available on http://www.uncjin.org/Laws/prisrul.htm.
International Covenants on Civil and Political Rights, 1966 (Entered into force on 23 March 1976) Article 7, 10
Principles of medical ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment, 1982 (Adopted by General Assembly resolution 37/194 of 18 December 1982)
Standard minimum rules for the treatment of prisoners, 1957 and 1977

4. Principles for the treatment of Prisoners contained in International Instruments

Adopted and proclaimed by General Assembly resolution 45/11 of 14 December 1990

All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.
There shall be no discrimination on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
It is, however, desirable to respect the religious beliefs and cultural precepts of the group to which prisoners belong, whenever local conditions so require.
The responsibility of prisons for the custody of prisoners and for the protection of society against crime shall be discharged in keeping with a State’s other social objectives and its fundamental responsibilities for promoting the wellbeing and development of all members of society.
Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.
All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.
Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged.
Conditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country’s labour market and permit them to contribute to their own financial support and to that of their families.
Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
With the participation and help of the community and social institutions, and with due regard to the interests of victims, favourable conditions shall be created for the reintegration of the exprisoner into society under the best possible conditions.
The above Principles shall be applied impartially.

4.1 Manual on Human Rights Training for Prison Officials

In 2004, the Office of the United Nations High Commissioner for Human Rights published a ‘Human Rights and Prisons: A Manual on Human Rights Training for Prison Officials’. This manual consists of in depth information on sources and rights that prisoners have. The pocketbook gives an thorough compilation of human rights of the prisoners as guaranteed by different international instruments. In the following session, we will discuss these rights.

Right to physical and Moral integrity:

All human beings are born free and equal in dignity and rights.
Human rights derive from the inherent dignity of the human person.
All persons deprived of their liberty shall be treated at all times with humanity and with respect for the inherent dignity of the human person.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. There are no exceptions.
Torture is defined as any act by which severe physical or mental pain or suffering is intentionally inflicted on a person, other than that which is inherent in or incidental to lawful sanctions.
Illtreatment is defined as other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.
Any act of torture committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, is a crime against humanity.
No prisoner shall be subjected, even with his or her consent, to any medical or scientific experimentation which may be detrimental to health.
Like torture and illtreatment, enforced disappearances and summary executions are completely prohibited.
All law enforcement officials shall be fully informed and educated about the prohibition of torture and illtreatment.
Any statement made as a result of torture shall not be invoked as evidence in any proceedings, except as evidence to bring the perpetrators to justice.
Orders from a superior officer may not be invoked as a justification of torture.
Law enforcement officials may use force only when it is strictly necessary.
Any individual who alleges that he or she has been subjected to torture has the right to complain and to have the case promptly and impartially examined by competent authorities.
All deaths in custody and disappearances of prisoners shall be properly investigated.
All interrogation rules, instructions, methods and practices pertaining to detained and imprisoned persons shall be kept under systematic review with a view to preventing torture. Persons deprived of their liberty shall be held in places which are officially recognized as places of custody.
A detailed register shall be kept of every person deprived of liberty.
All prisoners shall be provided promptly with written information about the regulations which apply to them and on their rights and obligations.
The families, legal representatives and, if appropriate, diplomatic missions of prisoners are to receive full information about the fact of their detention and where they are held.
All prisoners shall be offered a proper medical examination and treatment as soon as possible after admission.

Right to adequate standard of living

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
All persons deprived of their liberty shall have the right to an adequate standard of living, including adequate food, drinking water, accommodation, clothing and bedding.
Accommodation for prisoners shall provide adequate cubic content of air, floor space, lighting, heating and ventilation.
Prisoners required to share sleeping accommodation shall be carefully selected and supervised at night.
Adequate food and drinking water are human rights.
All prisoners shall be provided with wholesome and adequate food at the usual hours and with drinking water available whenever needed.
Clothing as a component of the right to an adequate standard of living is a human right.
All prisoners not allowed to wear their own clothing shall be provided with suitable clothing.
There shall be facilities for keeping clothing clean and in proper condition.
All prisoners shall be provided with a separate bed and clean bedding, with facilities for keeping bedding clean.
There must be facilities to wash and dry clothing and bedding regularly.

Health rights of prisoners

The enjoyment of the highest attainable standard of physical and mental health is a human right.

It is a basic requirement that all prisoners should be given a medical examination as soon as they have been admitted to a prison or place of detention.

Any necessary medical treatment should then be provided free of charge.

Prisoners should generally have the right to request a second medical opinion.

Prisoners and all detained persons have the right to the highest attainable standard of physical and mental health.
Prisoners should have free access to the health services available in the country.
Decisions about a prisoner’s health should be taken only on medical grounds by medically qualified people.
The medical officer has an important responsibility to ensure that proper health standards are met. He or she can do this by regularly inspecting and advising the director of the prison on the suitability of food, water, hygiene, cleanliness, sanitation, heating, lighting, ventilation, clothing, bedding and opportunities for exercise.
Every prison should have proper health facilities and medical staff to provide for a range of health needs, including dental and psychiatric care. Sick prisoners who cannot be treated in the prison, such as prisoners with mental illness, should be transferred to a civilian hospital or to a specialized prison hospital.
All prisoners shall have access to a qualified dental practitioner.
Services for psychiatric diagnosis and, if appropriate, treatment shall be available at every prison.
Prisoners who are insane shall not be detained in prisons, but transferred as soon as possible to mental institutions. Prisoners suffering from other mental diseases shall be treated in specialized institutions under medical management.
During their stay in a prison, insane and mentally ill prisoners shall be supervised by a medical officer.
It is important that health care for prisoners be provided by at least one qualified medical officer.
Medical personnel have a duty to provide prisoners and detainees with health care equal to that which is afforded to those who are not imprisoned or detained.
The primary responsibility of healthcare personnel is to protect the health of all prisoners.
– Healthcare personnel shall not commit or give their permission for any acts which may adversely affect the health of prisoners.
All prisoners shall be provided with facilities to meet the needs of nature in a clean and decent manner and to maintain adequately their own cleanliness and good appearance.
All prisoners shall have at least one hour’s daily exercise in the open air if the weather permits.
Prisons to be a Safe place
Use of force, including use of firearms, to prevent escape should only be applied when less extreme means are insufficient to prevent the escape.
Restraints may be used only as a precaution against escape during transfer, for no longer than strictly necessary, and provided that they are removed when the prisoner appears before a judicial or administrative authority; or on medical grounds.
Prisons should be safe environments for all who live and work in them, in other words for prisoners and staff, and for visitors.
No one in a prison should fear for his or her physical safety.
Chains and irons shall not be used as restraints.
Discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well ordered community life.
All disciplinary offences and punishments must be specified by law or published legal regulations.
No prisoner shall be punished before being informed of the alleged offence and having the opportunity to present a proper defense.
No prisoner shall be employed in any disciplinary capacity.
All cruel, inhuman or degrading punishments are completely prohibited, including corporal punishment or placing in a dark cell.
Punishment by close confinement or reduction of diet shall never be inflicted unless the prisoner is certified by the medical officer as medically fit to sustain it.
Instruments of restraint shall never be applied as a punishment.
Prisoners who are subject to disciplinary action should have the right of appeal to a higher authority.

Prisoners’ contact with outside world

No one shall be subjected to arbitrary interference with his or her privacy, family, home or correspondence.
All prisoners shall have the right to communicate with the outside world, especially with their families.
Foreign prisoners shall be allowed to communicate with their diplomatic representatives.
A prisoner’s request to be held in a prison near his or her home shall be granted as far as possible.
Prisoners shall be kept informed of important items of news.

Complaints and Inspection Procedures

Anyone whose rights and freedoms have been violated has the right to an effective remedy, determined by a competent court.
Every prisoner shall have the right to make a complaint regarding his or her treatment and, unless the complaint is evidently frivolous, to have it dealt with promptly and, if requested, confidentially. If necessary, the complaint may be lodged on behalf of the prisoner by his or her legal representative or family.
Every prisoner on admission shall be provided with written information on regulations and on complaints and disciplinary procedures in a language which he or she understands. If necessary, these rules should be explained orally.
If a complaint is rejected or not responded to in a timely manner, the complainant shall be entitled to bring it before a judicial or other authority.
States shall ensure a prompt and impartial investigation whenever there are reasonable grounds to believe that an act of torture or ill-treatment has been committed.
There shall be thorough, prompt and impartial investigation of all suspected cases of extralegal, arbitrary and summary execution, including cases where complaints by relatives or other reliable reports suggest unnatural death in the above circumstances.
Prisons shall be inspected regularly by qualified and experienced inspectors from a competent authority separate from the prison administration.
Every prisoner shall have the right to communicate freely and confidentially with inspectors, subject only to the demands of good order and discipline in the institution.

Special Categories of prisoners

Women:

Women are entitled to the equal enjoyment and protection of all human rights in the political, economic, social, cultural, civil and all other fields.
Women prisoners shall not suffer discrimination and shall be protected from all forms of violence or exploitation.
Women prisoners shall be detained separately from male prisoners.
Women prisoners shall be supervised and searched only by female officers and staff.
Pregnant women and nursing mothers who are in prison shall be provided with the special facilities which they need for their condition.
Whenever practicable, women prisoners should be taken to outside hospitals to give birth.

Juveniles:

Children are to benefit from all the human rights guarantees available to adults.
In addition, the following rules shall be applied to children:
Children who are detained shall be treated in a manner which promotes their sense of dignity and worth, facilitates their reintegration into society, reflects their best interests and takes their needs into account.
Children shall not be subjected to corporal punishment, capital punishment or life imprisonment without possibility of release.
Children who are detained shall be separated from adult prisoners. Accused juveniles shall be separated from adults and brought for trial as speedily as possible.
Special efforts shall be made to allow detained children to receive visits from and correspond with family members.
The privacy of a detained child shall be respected and complete and secure records are to be maintained and kept confidential.
Juveniles of compulsory school age have the right to education and to vocational training.
Weapons shall not be carried in institutions which hold juveniles.
Disciplinary procedures shall respect the child’s dignity and be designed to instill in the child a sense of justice, self-respect and respect for human rights.
Parents are to be notified of the admission, transfer, release, sickness, injury or death of a juvenile.

Nondiscrimination:

All persons are equal before the law and are entitled, without discrimination, to equal protection of the law.
Everyone has the right to freedom of thought, conscience and religion and persons belonging to ethnic, religious or linguistic minorities have the right to their own culture, religion and language.
A prisoner who does not adequately understand or speak the language used by the authorities is entitled to receive relevant information promptly in a language which he understands.
Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with diplomatic representatives of their State.
Prisoners who are nationals of States without diplomatic representation in the country or refugees or stateless persons shall be allowed reasonable facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.

Persons under detention without Sentence:

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty.
Everyone has the right to liberty and security. No one shall be deprived of liberty except on such grounds and in accordance with such procedures as are established by law.
Anyone who is arrested shall be informed, at the time of arrest, of the reasons for the arrest and of his or her rights. Anyone who is arrested shall be promptly informed of any charges.
Anyone who is arrested shall be brought promptly before a judicial authority for the purpose of having the legality of his or her arrest or detention reviewed and shall be released if the detention is found to be unlawful.
Anyone who is arrested has the right to trial within a reasonable time or to release.
Comprehensive written records of all interrogations must be kept, including the identity of all persons present during the interrogation.
All arrested or detained persons shall have access to a lawyer or other legal representative and adequate opportunity to communicate with that representative.
Untried prisoners shall be allowed immediately to inform their families of their detention and shall be given all reasonable facilities for communicating with their families and friends.
Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment.
Untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate.
Untried prisoners may, if they so desire, have their food procured at their own expense from the outside.
Untried prisoners shall be allowed to wear their own clothing if it is clean and suitable.
If an untried prisoner wears prison clothing, it shall be different from that supplied to convicted prisoners.
Untried prisoners shall always be offered the opportunity to work, but shall not be required to work.
Untried prisoners shall generally be allowed to procure at their own expense books, newspapers and writing materials.
Untried prisoners shall generally be allowed visits from their own doctor or dentist.
Persons awaiting trial shall not be detained in custody as a general rule.
Release pending trial shall be envisaged as early as possible.
A pretrial prisoner shall have the right to appeal to a judicial or other independent authority against his or her detention.
Persons arrested or imprisoned without charge shall be accorded the same protection and facilities as pretrial prisoners and those awaiting trial.

4. Summary

The international law over the years has developed a complex jurisprudence with regard to rights of the prisoners. The constantly evolving human rights have not ignored the marginalized and outcaste and several conventions have various clauses to ensure that the human rights of even convicted offenders are not violated.

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Reference

http://nhrc.nic.in/documents/LibDoc/Prisons_Prisoners_B.pdf.
http://www.ohchr.org/EN/ProfessionalInterest/Pages/BasicPrinciplesTreatmentOfPrisoners.as px.