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Looking beyond the borders: Improving correctional standards worldwide.

June 2001, Scotland -- A court of law ruled that inmate Robert Napier of the Barlinnie Prison in Glasgow, Scotland, he placed in better conditions because his prison cell constituted "inhuman or degrading treatment or punishment." The court reached its conclusion because Napier had to use a bucket as a toilet in a cell shared with other inmates and was only allowed out of his cell one hour per day. The case, which had significant repercussions, was brought to trial under the British Human Rights Act, passed in 1998, that, incorporates the European Convention on Human Rights into United Kingdom law. The Napier case was the first to succeed in the British courts under this act.

When deciding what is permissible regarding the treatment of inmates, many countries look beyond their borders and consider international conventions they have signed or regional treaties they have ratified. For example, 43 European countries, from the Arctic Circle to the Rock of Gibraltar and from the Republic of Ireland to Vladivostock, are bound by the European Convention for the Protection of Human Rights and Fundamental Freedoms. The convention, which entered into force as a European treaty in September 1953, establishes the inalienable rights and freedoms of each citizen and obliges all states that have ratified the convention to guarantee these rights. Of the world's 8.7 million inmates, 1.9 million are held in states that have ratified the convention and, therefore, are subject to the protection of this treaty and the judgments of the European Court on Human Rights. The court, which was set up under the treaty, consists of judges from the countries that have ratified the treaty. However, the judges s it on the court in their individual capacities and do not represent any country. Individuals who claim that their rights have been violated can apply to the court to have their cases heard. A legal aid scheme is available for applicants who cannot afford a lawyer. The court hears cases brought under all aspects of the Human Rights Convention, such as the right to family life and property, freedom of expression and matters concerning unfair treatment in the legal system, and inhumane prison conditions.

For many non-European countries, United Nations conventions and standards regarding the treatment of inmates constitute an external reference point. A significant amount of prison reform activity taking place in the world is aimed at bringing correctional systems closer to adherence to requirements and guidelines. In countries as far apart as Chile, Kazakhstan and Nigeria, laws are being amended and staff are being retrained so their methods can be aligned with international community expectations.

For many ministries of justice and correctional administrators and staff, these international instruments constitute the ethical and legal framework against which policies for the treatment of inmates are developed and tested. Although the international community does not have effective enforcement methods to ensure that rules are followed, they are still influential.

Countries strive to follow the international community for a variety of reasons. Sometimes, they wish to gain international approval or shed international disapproval. Other times, they are in the process of moving from a dictatorship to a democracy and see humane and respectful treatment of inmates as part of their new ideology. On occasion, prison reform may be stimulated by a desire to join an international grouping. For example, Turkey is involved in a major justice reform program linked to its application to join the European Union. In addition, organizations such as Amnesty International and Human Rights Watch use the international instruments as the standard against which they judge the prison system in any particular country. For instance, the 1995 Human Rights Watch report, Children in Confinement in Louisiana, bases its analysis on "the standards, both international and national, which apply to children in confinement." (1) It cites the United Nations Convention on the Rights of the Child, as well a s five other relevant international documents. (2) It then describes its findings about the way children in confinement in Louisiana were handled and sets each aspect of their treatment, such as physical conditions, discipline and the complaints process, against international norms.

International Covenant on Civil and Political Rights

The basic premise underlying the entire international framework is Article 10 of the International Covenant on Civil and Political Rights, which states: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person." This basic message is repeated in the European Convention on Human Rights, the African Charter on Human and People's Rights, and the American Convention on Human Rights.

Occasionally, there is question as to why there is a specific article on detained people in all major human rights conventions. Rights for women and children and protections for minorities are easy to understand. But why should convicted offenders, who might have committed heinous acts, be protected by international law from cruel and degrading treatment? Have they not forfeited their rights once they have committed crimes? According to Article 10, the answer is that human rights extend to all humans. The events of World War II showed what humans can do to one another when convinced they are enemies. Subsequent events in Cambodia, Rwanda and Yugoslavia, where people turned on their neighbors and tortured and killed them, show the continued possibility for such acts of gross inhumanity.

Thus, the philosophy of human rights states that nothing can place a human beyond the reach of certain protections. By implication, some rights will be lost when a person is incarcerated due to proper legal procedures, but basic rights remain. The right to life, health, fairness, justice, humane treatment, dignity and protection from ill treatment or torture are inviolably sacred. Article 6 of the International Covenant requires the right to life to be respected. Article 7 forbids torture and cruel, inhumane or degrading treatment. Article 9 asserts liberty and security of the person and forbids arbitrary and unlawful detention.

The formulation in Article 10 is clear in asserting a certain ethical attitude to the treatment of inmates and outlawing the most extreme ill treatment. Yet, many questions still exist and much remains to be interpreted. What is humanity in this context? What measures must prison administrations take to respect inherent dignity? How far can resource constraints, security needs or inmate behavior be taken into account? These are difficult questions that correctional institutions struggle with worldwide. For example, correctional administrators in the United States must face debates of interpreting the provision in the Eighth Amendment to the U.S. Constitution prohibiting cruel and unusual punishment. The Scottish case previously cited shows an early 21st century interpretation of inhumane and degrading treatment. Before this, cases considered by the European Court of Human Rights had not reached the conclusion that such prison conditions were a breach of the European Convention. (3)

International Instruments

Analyses of United Nations and regional conventions and standards suggest certain key requirements and approaches in the treatment of inmates. First is the clear statement about the purpose of prison, from which much else flows. As the American Convention on Human Rights states, "Punishments consisting of deprivation of liberty shall have as an essential aim: the reform and social re-adaptation of the inmates." The International Covenant has virtually the same words. Prisons should not exist just to extract labor from the inmates along the lines of the Soviet gulag, the penal system of the former U.S.S.R. consisting of a network of labor camps. Nor should they simply be places in which offenders are warehoused. Governments should not confine inmates without rehabilitative opportunities. Prisons should be organized and run in a way that puts rehabilitation at the heart. (4) Thus, according to these treaties, the purpose of prisons should be rehabilitative, whether individual inmates are capable of reform, and regardless of whether the circumstances to which the inmate returns on release are conducive to reformation.

From this can be deduced the oft-quoted aphorism, "People are sent to prison as punishment, not for punishment." That punishment is the deprivation of liberty. The international instruments make it clear that prisons should not be places that impose additional punishments such as chaining inmates, keeping them in dark cells, restricting food and water and/or withholding medical care. (5) Prisons should be places in which procedures are justly and fairly administered. Complaints should be heard and inmates should have the chance to defend themselves at disciplinary hearings. (6) To ensure fairness, independent outsiders should conduct prison inspections. (7)

Particular provisions in a number of the U.N. instruments call for the respect of pretrial inmates' rights. They are to be presumed innocent until found guilty8 and until then, have a special status. The U.N. Standard Minimum Rules for the Treatment of Prisoners dictates that remand inmates should normally be able to recieve food brought in from outside. (9) They should be able to wear their own clothes if suitable. (10) They cannot be made to work. (11) They must be able to use their own money for books or other such items. (12) They must be allowed visits from doctors or dentists if the grounds are reasonable. (13) access to legal advisers must be assured (14) and there is strong emphasis in all international instruments on holding pretrial inmates separately from those who have been convicted. (15)

The treatment of children (those under 18) also is covered by a convention: The 1989 Convention on the Rights of the Child. While 191 countries have ratified this convention, the United States has not. Although it signed the convention in February 1995, ratification has been delayed by opposition to the treaty within the Senate and in some public sectors. A number of organizations have claimed that the convention is a threat to the American family. (16)

The convention presents certain standards for dealing with children in conflict with the law. For example, capital punishment or life imprisonment without the possibility of release shall not be imposed on those who were under 18 when they committed their offenses. Detaining a child should only be a last resort and for the shortest possible time. Children in detention should be separated from adults unless keeping them together is in the interest of the child, and children accused of breaking the law should have the same protections as adults.

The practice of employing medical personnel in prisons is covered in a range of instruments. The most important of these is 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, which was adopted by the United Nations in 1982. (17) Together, these instruments establish a conduct code for correctional health professionals. Corrections professionals should not, under any circumstance, take part in administering cruel, inhumane or degrading punishments (18), particularly using inmates for experimental research. (19) Corrections professionals should ensure that inmates receive the same standard of health eare as the gener a public (20) and prison health care should be free of charge (21) Documents from the World Health Organization and the Council of Europe dealing with HIV and AIDS in prisons recommend confidentiality and no compulsory testing or se gregation of infected inmates. Terminally ill inmates should be released from prison whenever possible.

European Committee for The Prevention of Torture

Although there are standards set by an international body, the only region of the world with a supranational inspection mechanism is Europe. The European Committee for the Prevention of Torture and Other Inhuman and Degrading Treatment or Punishment is the only inspection mechanism of places of detention that allows citizens of a state to inspect the institutions of another state and report their findings.

All 41 member states of the Council of Europe that have ratified the Convention for the Prevention of Torture are subject to visits from this committee. They also may nominate one member to the committee. Inspections usually are completed by a small number of members and one or two experts. This committee has the right to go to any member state and inspect any place in which people are detained against their will -- prisons, mental hospitals and immigration detention centers. They may ask for access to any such place at any time of the day or night and also may ask to see documents such as incident or medical reports, log books, admission registries and punishment books. The committee submits a report to the government and, although it is confidential most governments decide to publish it.

The committee has uncovered and highlighted many abuses throughout the 10 years it has worked in Europe. When the committee first visited the United Kingdom in 1991, it found living conditions in some prisons so bad they were considered inhumane or degrading. When it visited France, the committee condemned the practice of shackling female inmates to hospital beds while they were in labor. In Switzerland it condemned placing mentally ill inmates naked in dark and squalid cells. In Portugal, the committee was horrified by the unsanitary arrangements in Linho Prison, where it found inmates emptying toilet buckets into a cesspit piled high with excrement. It heavily criticized the Netherlands for its inhumane treatment of high-security inmates. Some inmates held in a special security unit spent all day locked in their cells apart from one-half hour of outdoor exercise in small rooftop pens. The committee required the Dutch government to ensure it complied with the basic requirement of providing inmates with at le ast one hour of outdoor exercise every day, as well as access to meaningful activities. (22) Treatment of pretrial inmates in Sweden has caused concern for several years, particularly the very small exercise yards, lack of activities for detainees and the holding of some inmates in near-solitary confinement. (23)

From the experience of its inspections, the committee has, in recent years, begun to elicit principles for the prevention of torture and inhumane or degrading treatment. For example, inmates should be searched only by same-gender staff and any search requiring inmates to undress should not be conducted in the presence of members of the opposite sex. In the committee's view, babies should never be born in prison and pregnant women should never be shackled or restrained to beds or other furniture. In addition, crowding can be inhumane and degrading and all inmates, without exception, must have at least one hour of exercise every day in open air.

The committee is very concerned with the medical professionals' role and the capacity of these professionals to retain their independence, and believes that after any use of force, a doctor should immediately examine the inmate out of the hearing range of staff. The results of the examination should be formally recorded and made available to the inmate.

The committee also believes that when inmates are being punished for offenses against prison rules, punishment procedures should be carried out according to the principles of natural justice. This means inmates should have a right to hear the case against them, present their side, and have some avenue of appeal against decisions they think are unfair. The committee expects disciplinary procedures to provide inmates with the right to be heard and to appeal any sanction imposed. Inmates placed in administrative segregation should be given the reasons for the action in writing, excluding any details that may threaten security. Solitary confinement can, in certain circumstances, amount to inhumane and degrading treatment.

The committee also expects staff to protect inmates from violence from other inmates and protect them from contracting infectious diseases while they are incarcerated. Holding inmates in dormitories is undesirable and inmates should never be deprived of natural light or fresh air. Further, inmates who are kept in special high-security units should be able to meet their fellow inmates in the unit and be given plenty of activity choices. Special security units should aim at developing a good internal atmosphere and positive relations between staff and inmates. The Committee for the Prevention of Torture's reports are taken seriously by the European governments and are well-publicized by the media.

Conclusion

As a result of many years of operation of the European human rights machinery, there are clear indications how European inmates should be treated. Countries aspiring to join the Council of Europe or the European Union accept that they should bring their prison conditions up to the European norms. The situation, however, is not static. The European Court of Human Rights and the Committee for the Prevention of Torture are issuing new judgments and new interpretations that update the received wisdom in the light of changing times.

External observers of corrections in the United States often comment on the apparent absence of international norms and standards. Also, there is much interest by European observers in the great tradition of the involvement of the courts in prison conditions. It seems that the main mechanism for regulating prison conditions and treatment in the United States is recourse through the courts. Inmates or their representatives go to court about a range of problems -- abuse, withholding medical treatment and various types of negligence by authorities. There is admiration for campaigning organizations, such as the National Prison Project of the American Civil Liberties Union, which has used the courts to establish reforms in the prison systems of some states. However, it is notable that the European system, with its Convention on Human Rights and the Committee for the Prevention of Torture, is practically unknown in the United States. When reaching judgments about prison cases, U.S. courts do not refer to internatio nal jurisprudence and organizations campaigning for prison reform have, until recently, been virtually cut off from developments in the international arena. Much good could come from cross-fertilization between the U.S. system of detailed oversight and court system intervention, and the standard-setting approach of the international system, despite the U.S. system being restricted by the Prison Litigation Reform Act, which stripped the federal courts of much of their power to correct unacceptable prison conditions.

Vivien Stern is senior research fellow of the International Centre for Prison Studies, School of Law, at King's College in London.

ENDNOTES

(1.) Children in Confinement in Louisiana, Human Rights Watch Children's Rights Project, Human Rights Watch, United States, p. 3.

(2.) Ibid p. 6.

(3.) See Livingstone, Stephen and Tim Owen, Prison law, second edition. 1998. Oxford University Press, p. 78.

(4.) Rubin, Edward L. 2001. The inevitability of rehabiliation. In Law and inequality: A journal of theory and practice.

(5.) U.N. Standard Minimum Rules for the Treatment of Prisoners -- United Nations, Rules 31,32.

(6.) (Article 2 of the International Covenant on Civil and Political Rights requires everyone effective remedies to be available. Principle 33 of the U.N. Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment states, "A detained or imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment, in particular, in case of torture or other cruel, inhuman or degrading treatment, to the authorities responsible for the administration of the place of detention and to higher authorities and, when necessary, to appropriate authorities vested with reviewing or remedial power."

(7.) U.N. Standard Minimum Rules for the Treatment of Prisoners -- United Nations, Rule 55.

(8.) American Convention on Human Rights Article 8(2).

(9.) U.N. Standard Minimum Rules for the Treatment of Prisoners -- United Nations, Rule 87:

(10.) Rule 88(1).

(11.) Rule 89.

(12.) Rule 90.

(13.) U.N. Standard Minimum Rules for the Treatment of Prisoners -- United Nations, Rules 87,88.1,89,90,91.

(14.) American Convention on Human Rights Article 8(2).

(15.) International Covenant on Civil and Political Rights Article 10 2a.

(16.) See Web site of United States fund for UNICEF at: www.unicefusa.org/infoactiv/rights.html.

(17.) United Nations resolution 371194 adopted 18 Dec. 1982.

(18.) Principle 2 of the 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, which was adopted by the United Nations in 1982.

(19.) Principle 22 of the U.N. Body of Principles for the Protection of all Persons Under any Form of Detention or Imprisonment.

(20.) Principle 2 of the 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, which was adopted by the United Nations in 1982.

Principle 1 of the 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, which was adopted by the United Nations in 1982.

(21.) Principle 24 of the U.N. Body of Principles for the Protection of all Persons Under any Form of Detention or Imprisonment.

(22.) Council of Europe, Report to the Netherlands Government on the visit to the Netherlands carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 17 to 27 November 1997, Strasbourg 1998 para 46.

(23.) Council of Europe, Report to the Swedish Government on the visit to Sweden carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 15-25 Feb. 1998, Strasbourg 1998, paras 45-51.
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Author:Stern, Vivien
Publication:Corrections Today
Geographic Code:4EUUS
Date:Feb 1, 2002
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