The last 20 years have seen an explosion in the use of imprisonment in a great number of OSCE participating countries. Within this reality, recently, prison systems in many countries are undergoing massive changes. Experience has shown that certain systems and structures have favoured the guarantee of the rights of prisoners. The analysis of various countries’ prison systems, comparisons between prison services and the exchange of experiences have resulted in important tools for prison reform and guarantee of prisoners’ human rights.
In democratic countries prison administrations are generally public authorities which come under the control of a government ministry. Amongst OSCE participating countries, prison administration can be included within the departments of the Ministry of Interior (or Internal Affairs) or the Ministry of Justice. Experience has shown that it is preferable to have prison services’ placed under the Ministry of Justice. One of the advantages of this structure is the possibility of establishing a close link between the judicial process and prisoners. It also provides for the prison services being under the authority of a civil rather than a military power, affording prison staff status as civil servants. It also clearly provides for a separation between the institutions which deals with the investigation and that which deals with punishment of crimes. Prisons being administered as a civil authority also affords a closer link with civil society and social agencies.
As of the end of 2003, within the OSCE participating countries, Lithuania, Spain and Moldova had their prison systems placed within their Ministry of Internal Affairs. Tajikistan, Belarus, Kyrgyzstan, Kazakhstan and Armenia had recently transferred their prison systems from their Ministries of Interior to their Justice Ministries. Differently, Albania and Azerbaijan posses a hybrid structure, where some prisoners - pre-trial and remand prisoners - are under the authority of the Minister of Interior while prisons accommodating convicted prisoners are administered by the Minister of Justice.
Prisons are extremely complex organizations. They are often based on a great number of specific legislations and regulations. In many countries, the law provides for a general organic legislation establishing the prison services, the prisons’ administration, its main activities and structures. These are often called Prison Acts (for example in Ireland) or Prison Codes (for example Lithuania). The day to day running of the prisons and the treatment of prisoners are often regulated by by-laws or rules developed by the Minister in charge of the prison administration. Specific regulations for the recruitment of staff and its discipline might also exist in certain countries. Other legislations, legislations related to criminal law and criminal procedural law, often have provisions relating to the treatment of prisoners. Within this structure, it is important to analyse how the different legislation interplay and whether any conflict can be identified between their provisions resulting in uncertainty and consequently allowing room for abuses.
The fact that prisoners are under the custody of government institutions has historically resulted in prisoners being vulnerable to human rights violations. Human rights law has consequently attempted to regulate the treatment and conditions of prisoners in order to prevent abuses.
Unquestionably, prisoners have some of their human rights limited during imprisonment. The right to liberty is clearly severely limited; other rights such as the right to privacy, freedom of expression, freedom of movement and freedom of assembly are also limited as a consequence of imprisonment. However, prisoners are entitled to the same rights as every person and rights provided in the international human rights instruments of general application, mainly the International Covenant for Civil and Political Rights, European Convention on Human Rights and European Charter on Fundamental Rights, are also to be guaranteed to prisoners.
It is generally understood that it is impossible to develop a model prison system which can be adopted by countries; neither is this the aim of regulating prisoners’ rights and treatment at international and regional levels. The regulation of prisoners’ treatment and conditions is in reality essential to guarantee that prisoners do not have their rights violated by the prison services.
The main principle guiding the rights of prisoners is provided under article 10(3) of the International Covenant for Civil and Political Rights which states that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. This is the main binding regulation specifically applied to the treatment of prisoners. Neither the European Convention on Human Rights nor the European Charter on Fundamental Rights have a similar specific guarantee.
Both the United Nations and the Council of Europe have developed non-binding instruments regulating the treatment of prisoners. At United Nations level, the main documents are the Standard Minimum Rules for the Treatment of Prisoners (1957) and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988). There is also 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 (1982). At the Council of Europe level, the main standard-setting document is the European Prison Rules (1987).
The United Nations’ Standard Minimum Rules for the Treatment of Prisoners and the European Prison Rules provide for similar rules and guidelines, such as the registry of prisoners, prison hygiene, food, clothing, medical services, prisoners’ discipline, etc. Analysing both documents it can be observed that the European Prison Rules have gone further than the Standard Minimum Rules by providing more specific guidelines for the treatment of prisoners.
The prohibition of torture and cruel, inhuman and degrading treatment, which can be found in the main human rights instruments, is also an important guarantee for prisoners. This guarantee is in reality the backbone for the treatment of prisoners.
It is not only inter-governmental organisations which have been involved in the area of prison services. Non-governmental organisations have also been playing an important role in the prison system and penal reform. They may contribute to the development of policies and law reform, to the provision of services for prisoners before and after release, including material assistance and individual support, and to the monitoring the treatment of prisoners and undertaking inspections to prison establishments
Analysis provided by: Barbara Nazareth Andrade de Oliveira, Legal Expert.