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People in detention have been disproportionately impacted by the COVID-19 pandemic and by the strict measures taken to prevent and control it. While states and prison authorities have an obligation to protect people in detention from COVID-19, they also have a responsibility to do so in a manner that is reasonable, proportionate and causes the least amount of harm – harm to prisoners’ health, well-being, dignity and human rights. This is a delicate balance to strike, and one which was not achieved in prisons in many countries studied.
This report aims to contribute to the research on responses to Covid-19 in prisons and their impact on the health and rights of people deprived of their liberty.
The report looks into prison systems in fifteen countries (Benin, Burkina Faso, Canada, France, Ghana, Indonesia, Italy, Mexico, Kenya, Kyrgyzstan, Mauritius, Moldova, Nepal, Switzerland, and the UK) and analyses how prisons have adapted to new stages of the COVID-19 pandemic and what actions, if any, they have been taken to protect the health and rights of people in detention.
Prior to the Covid-19 pandemic, prison conditions were substandard and overcrowded globally, and prison-based health and harm reduction services were already underfunded, inadequate and difficult to access. Data collected for this report confirms many pre-pandemic shortcomings in the availability and accessibility of existing health and harm reduction services in prisons in the fifteen countries surveyed, including a lack of information about services; unequal or irregular provision of services; confidentiality issues; resource shortages; prison subcultures; and challenges in accessing records from external service providers – among others.
During the pandemic
The existing crisis in prisons rendered the challenge of curbing the spread of COVID-19 in these settings even more imperative. States and prison authorities urgently adopted measures to achieve this aim – including extreme ones such as extended lockdowns, preventive quarantine, and restrictions on visits. Despite being framed as effective to control the spread of the virus, these measures had – and continue to have – far-reaching health and human rights implications for people in detention in the countries surveyed.
They had the effect of rendering the already limited health and harm reduction services available in prisons even more deficient, fragile and inaccessible than they were before. Lockdowns and preventive quarantine kept people confined to cells for 23 hours a day or more, for extended and recurring periods. The suspension of visits made it difficult, if not impossible, for external service providers, many of whom were responsible for providing essential services and resources to people in detention, to enter facilities for extended and recurring periods. As less restrictive means of controlling the virus were rolled out in prisons, such as COVID-19 tests and vaccines, they should have replaced the more restrictive ones – alongside of course strategies for decarceration and decriminalisation to address prison overcrowding. This was, however, not often the case in the countries surveyed. On the contrary, extreme measures continued to be implemented in prisons, well after they were lifted in the broader community, and some even continue to this day, raising questions as to their exceptional or temporary nature.
While human rights law does allow for the legitimate and reasonable limitation of some rights in times of an emergency, these must be strictly required and comply with specific criteria, including proportionality and necessity. Unfortunately, it is likely that the use of extended lockdowns, preventive quarantine and visit limitations in prisons in many of the countries surveyed failed – at least at a certain point – to meet the necessity and proportionality test to justify their use. They appear to have been, and/or continue to be, arbitrary, excessive, and abusive, giving rise to concerns that they could in some cases amount to human rights violations, including of the right to health and the prohibition of torture and ill-treatment.
The impact of extended lockdowns, preventive quarantines and restrictions on visits, obstructed access to essential medicines, as well as essential health facilities, goods and services, for people living in prisons in many of the countries surveyed, effects which are still being felt today in some countries. These measures continued long after those in the broader community were lifted, and even after testing and vaccines were rolled out in prison settings, in contravention of the principle of equivalence. Furthermore, the use of strict lockdowns and preventive quarantine in many countries had the effect of subjecting people in prisons to prolonged and indefinite isolation regimes. It appears some of these measures were arbitrary and excessive, and effectively constituted solitary confinement, or prolonged solitary confinement as defined by the UN Standard Minimum Rules for the Treatment of Prisoners in some cases. The damaging effects of these measures on the mental, physical and social health of prisoners have been widely documented and internationally recognised, and could amount to a breach of the prohibition of torture and other, cruel, inhuman or degrading treatment of punishment.
While there have been some notable innovative measures and reforms adopted to protect the health and rights of people in detention in the countries surveyed, these were the exception and not the rule. For many prisons systems it appears to be back to “business as usual”, with conditions in some countries’ prisons identified as having worsened since the pandemic. This suggests that an opportunity for crucial structural change in prisons has largely been missed.
Governments and prison authorities must now reflect closely on the failings and lessons learned, and ultimately on how the rights, health and well-being of people deprived of their liberty could have been, and can be, better protected going forward. Initiatives to set standards and policies for pandemic prevention, preparedness and response at the international level must pay specific attention to the particular needs and experiences of people deprived of their liberty, learning from the successes and failures of the COVID-19 response in prisons and beyond. As now widely recognised, decarceration and decriminalisation should be prioritised – in a sustainable way – to protect people in detention from the risks of COVID-19 and human rights abuses. At the same, urgent action must be taken to harness, and anchor in domestic legislation, those positive adaptations and reforms that did take place during the crisis, to ensure their sustainability and improve conditions for those who will remain in prisons during the current pandemic and beyond
Webinar "The impact of COVID-19 responses in prisons on human rights and the provision of health and harm reduction services"
On Wednesday 8th March, HRI presented the report’s main findings and heard from experts and advocates from Kenya, Moldova and Mexico about the impacts of the COVID-19 pandemic on the access to health services for the prison population, which are experienced until today.