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Written By : FLORINA LAZA
The conditions in which prisoners are being held are different for every country, but what they all have in common is an all-encompassing set of international standards which needs to be addressed and put in practice accordingly. The revised UN Standard Minimum Rules for the Treatment of Prisoners were adopted unanimously in December 2015 by the UN General Assembly (UN-Doc A/Res/70/175). They are known as “the Nelson Mandela Rules” to honor the work and achievements of the late President of South Africa, Nelson Rolihlahla Mandela, who was a strong advocate for the rights of prisoners throughout his entire life, spending “27 years in prison in the course of his struggle for global human rights, equality, democracy and the promotion of a culture of peace”.
The original framework was firstly adopted in 1955 and after more than 60 years of practice, there was a clear need for development. In the past decades, the international legal framework on the treatment of prisoners has been perfecting and several international conventions interfered, such as: the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
While they present a general international legal framework on basic principle rights, the Nelson Mandela Rules consist a set of minimum standards that should be applied in prisons from admission to release, assuring that every detainee’s right matters. However, the 122 Rules do not seek to create a model system of penal institutions, but rather to present in the most adequate way “what is generally accepted as being good principles and practice in the treatment of prisoners and prison management”. Considering the variety of legal, social, economic and geographical circumstances, it is obvious that those rules are not suitable for all countries. However, they should determine a continuing process of evolution in the struggle of creating fair domestic prison systems.
Globally, the world prison population has increased by almost 20% since 2000, to more than 10 million people, and the conditions for some of those detainees are a nightmare: overcrowded cells; limited medical and health services; high usage of solitary confinement; violence and drugs; torture, ill-treatment and the absence of legal safeguards; limited access to legal representation and little knowledge of basic rights; lack of hygiene, food, care, and, of course, dignity. The Nelson Mandela Rules cover all aspects of those international problems and outline the agreed minimum standards for the treatment of prisoners.
From Rule 1 to 5, the international instrument defines the basic principles applicable “to all categories of prisoners, criminal or civil, untried or convicted, including prisoners subject to “security measures” or corrective measures ordered by the judge”. First of all, all prisoners should be treated with respect due to their inherent dignity and value as human beings (Rule 1). Nothing justifies torture or other cruel, inhuman or degrading treatments or punishments.
Also, all the rules should be applied impartially with no discrimination “on grounds of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or any other status”. Every prisoner’s moral beliefs and religious views should be treated with consideration (Rule 2). So, all detainees should be treated according to their individual needs, especially taking into account the most vulnerable categories (pregnant women, elderly people, and malnourished, people who are ill or immunocompromised, disabled or lacking capacity). Another idealistic aspect would be the minimization of any “differences between prison life and life at liberty” through necessary adjustments for prisoners with physical, mental or other disabilities (Rule 5).
The whole purpose of the prison system is to reduce criminality, recidivism and ensure reintegration in the society. For those, prison administration and other competent authorities should offer education, vocational training and work through a variety of programs (Rule 4). The prisoner must feel that, after serving his time, he can have a future outside the prison facility.
In every prison, there should be a sustainable standardized prisoner file management system represented by an electronic database of records or a registration book with numbered and signed pages. The prisoner file management shall include certain pieces of information prior to admission and in the course of imprisonment that shall be kept confidential and made available only to those who have a professional responsibility which justifies the request (Rule 6 – 9).
Moreover, separation of categories on basis of sex, age, criminal record, the legal reason for their detention is a highly requested necessity that goes beyond the call for dignity. The separation shall be made on institutions or parts of institutions as such: men prisoners should be kept as far as possible from women prisoners, at least in two entirely separate premises of an institution; prisoners awaiting trial shall be kept separate from prisoners serving a sentence; civil prisoners shall be kept separate from prisoners imprisoned for criminal charges; young prisoners shall be kept separate from adults (Rule 11).
In respect to general living conditions, “it is not desirable to have two prisoners in the same cell or room”. Every prisoner should occupy a cell or room alone with the exception of temporary overcrowding. Every prisoner must have access to clean bedroom facilities that shall meet the requirements of health, dignity and hygiene. Adequate bathing and shower installation must be provided at least once a week in temperate climates and for other kind of climates only taking into account each season and geographical particularities. Also, proper and clean clothing is a necessity for the maintenance of hygiene. Moreover, food and water restrictions are prohibited. Prisoners should be provided with nutritious food at fixed hours and drinking water whenever they need it. The Rules require certain conditions for prisoners who work in respect to the general need for fresh air and light of natural or artificial kind. But those prisoners who are not employed in outdoor work should have at least one hour of exercise in open air daily or access to physical and recreational training (Rule 12 – 23).
In regards to health-care services, the Rules sustain that every prison should have at least one competent public health body who bears the responsibility of evaluating a prisoner’s health prior to admission and in the course of imprisonment. It has, also, the task of protecting and improving the physical and mental health of prisoners, and of regularly inspecting and advising the prison director and the prison staff.
Prisoners should have access to the same standards of health care as any human being. All prisoners who require specialized treatment or surgery must be transferred to specialized institutions or to civil hospitals. No discriminations should be allowed, but rather particular treatments for those with special healthcare needs should be provided. For example, prisons should provide special accommodations and treatments for women being in postnatal care. Furthermore, a child can be allowed to stay with his mother in the prison facility, but only taking into account the best interest of the child concerned. The child of the prisoner must be provided with specific child related health-care services and helped by specialized childcare staff and should be shifted to special facilities when they are not in the care of their parent. An important mention is that children living with their incarcerated parent should never be treated as prisoners.
Other provisions express the absolute prohibition of scientific experiments that may affect the prisoner’s health, such as the removal of prisoner’s cells, body tissues or organs. But they may be allowed to participate in clinical trials and other health researches only with their free and informed consent and only in accordance with national and international laws (Rule 24 – 35).
With the purpose of keeping the discipline and order among all prisoners, the prison staff must take certain actions, but only in respect to each prisoner’s dignity. Idealistic would be that no more restrictions will be used, but the reality is more ruthless and sometimes only authority can make a change in a person’s behavior. Even so, there shouldn’t be more restrictions than it’s necessary to “ensure safe custody, secure operation of the prison and a well-ordered community life” (Rule 36). The use of torture or other inhuman or degrading treatments or punishments as a form of disciplinary sanction is strictly forbidden. Prison staff is encouraged to use conflict prevention techniques such as mediation or other alternative dispute resolution mechanisms to prevent and resolve conflicts (Rule 38). However, the prisoner who suffers from mental illness or intellectual disability will not be sanctioned in this way and, most likely, will only be removed to a separate facility. No prisoner will be deprived of his or hers general living conditions addressed in these rules with no exception (Rule 42).
In addition, the Nelson Mandela Rules are the first international instrument in which limitations on the use of solitary confinement are regulated. This form of punishment refers to the “confinement of a prisoner for 22 hours or more without meaningful human contact”. Prolonged solitary confinement lasts for 15 consecutive days and is prohibited.
Solitary confinement should be used only with the proper authorization regulated by national laws and only in exceptional cases as a last resort for a short period of time. It is strictly prohibited for prisoners with mental illnesses or physical disabilities only if their conditions would be worsen. Also, the usage of such a practice on pregnant women and children is severely forbidden (Rule 44 – 45).
So, the following practices are prohibited: indefinite solitary confinement; placement of a prisoner in a dark or constantly lit cell; corporal punishment or the reduction of a prisoner’s diet or drinking water; collective punishment. Instruments of restraint which are deeply inhuman such as chains, irons or other instruments of restraint must never be applied as a sanction for disciplinary offences. Other instrument of restraint must be used only in certain regulated circumstances and only if allowed by laws (Rule 43 and Rule 47). Also, the family contact may only be limited, but not prohibited for an indeterminate period of time.
In this context, the health-care services has only the role of detecting and reporting to the prison director the adverse effects of disciplinary sanctions on mental and physical health of a prisoner subject to a permitted form of punishment (Rule 46).
Sometimes searches of prisoners and cells are a requirement to keep the security in the prison facility, but they must be conducted in respect to the principles of proportionality, legality and necessity, and only taking into consideration each prisoner’s right to privacy and inherent human dignity. Prior to admission, every prisoner should be informed about the prison law and regulations, obligations as a detainee, and all other important matters necessary for the adjustment to prison life. They, also, have the right to make complaints and requests which must be resolved promptly by the prison administration. If the request or complaint is rejected or not answered, the prisoner must have the possibility to address a higher judicial authority.
Regarding the contact of prisoners with the outside world, they must be permitted to communicate with their families and friends through phones or letters, and to receive visits on a regular schedule. Of course, conjugal visits must be allowed with no distinction between men and women (Rule 58). Besides, every prisoner should have the possibility of informing his or her family as soon as possible in the cases of imprisonment, transfer to another institution and any other serious illness or injury. As well as in respect to freedom of religion, access to qualified representatives of the religious cult must not be restricted. Moreover, if there is a considerable amount of prisoners of the same religion, a qualified representative must be appointed or approved (Rule 65).
In this highly sensitive environment, the necessity of specialized training for the prison staff emerges explicitly through the paragraphs of this international legal framework. The Rules requests training for employees prior to entry into service as well as ongoing in-service. The minimum training model should include security and safety, the concept of dynamic security, the use of force and instruments of restraint, the management of violent offenders, and legal rights and obligations.
The prison administration must make the necessary arrangements for the future reintegration of prisoners into society. They should be helped to continue to take part in the community, and not consider themselves as being excluded. Prisons should take into serious consideration that different groups of people may have different needs, thus if they are treated in the same way, you might achieve equality, but not equity. So, they should be differentiated by “criminal records, physical and mental capacities and aptitudes, personal temperament, the length of his or her sentence and prospects of release” (Rule 92).
Methods such as education, vocational guidance, social casework, employment counseling, physical development and strengthening of moral character must be synchronized with the individual needs of each prisoner. Another useful method is the process of classification and individualization for prisoners with the purpose of eliminating bad influence from detainees with a concerning criminal record and personality “in order to facilitate their treatment with a view of social rehabilitation” (Rule 93).
To ensure reintegration and reduce recidivism, the prisoner must be able to sustain himself economically after release. So, he should be provided with job prospects, education and meaningful activities. Any work should have the purpose of helping the detainee to accumulate practice in a job he will most likely continue upon his release. Also, learning opportunities should be at the core of the prison system. And a prison library must be available for all.
Despite all these, the Nelson Mandela Rules are a source of so-called soft law, thus being non-binding for state parties, but still representing a highly valuable commitment made by all Member States to acknowledge and recognize the principle issues regarding the treatment of detainees in prison facilities. As a result of it, all Member States have the moral obligation of adapting the provision of the presented resolution with their domestic legal framework, bearing in mind the spirit and the purposes of the Rules. So, all signed parties are encouraged to improve the conditions of detention for all prisoners by any means possible taking into account all the relevant and applicable international provisions and good practices.
Even so, there are still many problems to be resolved by future international laws. For example, overcrowding is still an international problem and may be reduced if non-custodial measures will finally be unanimously accepted and applied as a general rule, and pre-trial detention only as an absolutely necessary exception. Far too many people are found not guilty or sentenced to a minor sanction that doesn’t require imprisonment, thus suffering, in this process, is completely unnecessary from a public stigma as they are no longer presumed to be innocent by the general public opinion and are usually treated as criminals by the mainstream media.
Edited By : GAURAV AGARWAL