Dissel, A. (1996). Prison Conditions and Human Rights. In Prison Conditions in Africa, Report of a Pan-African Seminar Kampala, Uganda, 19-21 September.
Amanda Dissel
In Prison Conditions in Africa, Report of a Pan-African Seminar, Kampala, Uganda, 19 – 21 September 1996.
Amanda Dissel is Manager of the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
There are certain rights and freedoms which are fundamental to human existence. They are not privileges or gifts. They cannot be denied or forfeited. They are inherent to every human being. The principles may be found in many of the world's religions. This paper examines human rights as they apply to prisoners.
Written Declarations of Human Rights
With the Universal Declaration of Human Rights (UDHR), adopted by the General Assembly of the United Nations in December 1948, it was recognised for the first time that the treatment of individuals should not be left to the determination of individual States.
The 30 articles of the Declaration include all kinds of rights and freedoms: civil; political; economic; social and cultural.
Two treaties were drafted to transform the Declaration into binding international law. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
These covenants have binding force on the States which have signed them, but they also have some force in terms of customary law.
The African Charter on Human and Peoples Rights (ACHPR), which is relevant to countries on the African continent, was developed over a twenty year period and was adopted in 1986. The Charter includes the rights and duties of the community, and provides for the rights to peace, development, and to a healthy environment.
The Charter provides for equal protection before the law and equal protection of the law; the inviolability of human beings (respect to life and personal integrity and protection against arbitrary removal of this right); every person should be recognised the dignity inherent to any human being. Exploitation and cruel, inhuman or degrading punishment are prohibited.
The right to liberty and security of persons is guaranteed, and so is protection against arbitrary removal of this right. The right to be heard is also guaranteed, and the rights in relation to fair trial procedures are laid down.
Why is the Discussion of Human Rights Crucial to the Context of Imprisonment?
The way in which society treats its vulnerable members is a reflection of its social health and conscience: Prisoners are in the control and therefore at the mercy of their jailers. That is why it is so important that national, regional and international norms and policies safeguarding the human nights of prisoners be promoted and protected fully.1
Deprivation of freedom is one of the most severe infringements of a person's liberty, and therefore needs to be strictly regulated. Prisoners are vulnerable groups. It is often believed that because they have committed crime, they do not deserve to have their rights protected. They are usually completely under the power of others and maltreatment can flourish in circumstances which are mostly closed off from outside inspection. It is therefore necessary to take precautions against abuse and maltreatment. According to international statistics, the use of imprisonment is growing alarmingly.
The Legal Status of Prisoners
In some countries there has been considerable discussion on the legal rights of prisoners.
Two options are usually considered:
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Whether prisoners retain all their civil rights except those expressly taken away by their imprisonment.
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Whether all the prisoners' rights are taken away except those which the prison authorities grant them, either as privileges or as rights.
Various English decisions have emphasised that a prisoner retains all civil rights save those expressly or by necessary implication taken away from him directly by the fact of his being in prison.2 South Africa has recently followed the same route in the case of Minister of Justice vs Hofmeyer.3 Some countries safeguard the rights of their citizens constitutionally in a Bill of Rights which may have specific reference to prisoners.
The international treaties and declarations constitute part of a large body of international law. Their mention of prisoners is very general, and recourse needs to be made to more specific instruments which assist in defining and interpreting the rights contained within such instruments. The Standard Minimum Rules for the Treatment of Prisoners (SMR), although they do not constitute an international treaty, do assist in giving content to the international human rights instruments.
The Standard Minimum Rules for the Treatment of Prisoners
These were approved by the United Nations in July 1957. A further Rule was added in 1977 to extend the application of the Rules to persons arrested or imprisoned without charge. The Rules are intended as a set of guidelines, not strictly as rights.
There are 95 Rules which set out what is considered as being good practice and principle. But they are also intended to guard against mistreatment, particularly in relation to the enforcement of discipline. They are minimum standards below which prison administrations should not fall.
Some of the fundamental principles of the SMR include:
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Prisons shall be well-ordered communities: where there is no danger to life, health or personal integrity.
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No discrimination shall be shown in the treatment of prisoners.
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Prison conditions shall not impose or constitute a punishment additional to the deprivation of liberty imposed by the imprisonment, nor should they aggravate the suffering caused by the imprisonment.
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Activities should aim towards assisting the prisoner to resettle in the community by providing opportunities for the prisoners to develop skills.
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Prison conditions should be compatible with human dignity and acceptable standards in the community.
Part One of the SMR sets out the Rules of general application, while Part Two refers to special categories of prisoners. Part One includes rules pertaining to the keeping of a register, separation of prisoners, accommodation, hygiene and clothing, food, exercise, medical services, discipline and punishment, and instruments of restraint. It also deals with complaints by prisoners, inspections and institutional personnel.
Some Core Rights of Special Applicability to Prisoners
Treatment
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. [Article 5 of Universal Declaration of Human Rights (UDHR), Article 7 of International Covenant on Civil and Political Rights (ICCPR), Article 5 of the African Charter on Human and Peoples Rights (ACHPR)].
The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment defines torture as:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act which he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.4
Article 6 of the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment5 adds that the term "cruel, inhuman or degrading treatment" could include circumstances which deprive the prisoner, temporarily or permanently, of the use of any of his natural senses, such as sight, hearing, or his awareness of place and the passing of time.
This principle is especially relevant to any discussion concerning the discipline and punishment of prisoner.
Non discrimination
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without discrimination of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. [UDHR Art 2, ICCPR Art 2(1), ACHPR Art 2, SMR 6(1)].
Discrimination can mean the imposition of treatment or conditions which are detrimental or disadvantageous, or which is substantially favourable to certain individuals or to groups of prisoners. Some prison regimes separate and treat more favourably some prisoners who are regarded as important or as having a higher social status than others.6
On the other hand, important religious or social differences should be recognised, and may require special treatment or the allowance of certain behaviour where…
…it is necessary to respect the religious belief and moral precepts of the group to which a prisoner belongs. [SMR Rule 6(2)].
For example Muslim prisoners may require special facilities for washing and prayer according to fixed times in the day. Hygiene and food requirements may also have to be specially adapted.
However, religious behaviour or practice which leads to cruelty or violence, especially to other groups, should not be permitted.
Dignity
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in the spirit of brotherhood. (UDHR Art 1, Preamble, ICCPR Preamble)
All persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the human person. (ICCPR Art 10(1))
All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person. (Principle 1 of the United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment)
Living conditions are one of the major factors which determine a prisoner' s state of mind, self-esteem and dignity. How and where the person eats, sleeps and uses the toilet have an enormous effect on mental and physical well being. Not only do poor conditions violate the rights to dignity, but they may also amount to cruel, inhuman or degrading treatment. The Standard Minimum Rules provide detailed guidelines on the standards of accommodation, hygiene and nutrition.
Accommodation
The Standard Minimum Rules stipulate that each prisoner should sleep in his/her own cell. Special selection procedures are stipulated where it is necessary to accommodate more than one prisoner in dormitory accommodation. All accommodation should meet the requirements of health, climatic conditions, cubic content of air, minimum floor space, lighting, heating and ventilation.
Overcrowding has the greatest effect on the numbers of prisoners held in cells, with some countries or prisons accommodating many times more than should be held in the cell. Frequently prison regimes claim they are unable to regulate the numbers of prisoners accommodated as they have no influence over the number of offenders sent to prison. While this may be true, they have an obligation to ensure protection of their rights.
Apart from the obvious and expensive solution of building more accommodation, the United Nations has sought to alleviate these problems by reducing the size of the prisoner population by recommending alternatives to imprisonment (the Standard Minimum Rules for Non Custodial Measures). Other solutions relate to early releases of prisoners, automatic remission of sentence and parole. Penal Reform International (PRI) recommends that management maximise the time that inmates spend outside of their cells, or devise strategies for rotating sleeping times in the cells.7
Careful selection of prisoners accommodated in the same cells is crucial. Prison populations are often comprised of extremely violent or aggressive people who single out and abuse vulnerable prisoners. Gang and sexual abuse are particularly prevalent in overcrowded conditions. Good supervision of dormitory cells is also important with regular patrols by staff and mechanisms by which prisoners can call staff in cases of emergency.
PRI reports numerous instances where prisoners are held in extremely poor conditions; in dark cramped spaces; with little or no ventilation; damp or wet cells; dirty cells.
The Rules stipulate that prisoners shall have at least one hour's exercise outside of the cell in the open air per day. Again overcrowding and shortage of staff frequently is stated as one of the reasons many prison regimes do not adhere to the principles.
Sanitation, Hygiene and Clothing
Rules 12, 13 and 14 require that there are adequate facilities to enable the prisoner to comply with the needs of nature in a clean and decent manner, provision of bathing or shower facilities, and the maintenance of a clean institution.
It is important to have access to a toilet at all times. These should be screened from public areas, and especially from places where food is prepared or consumed. If the provision of flush toilets is not possible containers should be used which can be emptied several times a day.
The wearing of one's own clothing is important for a sense of identity, and it increases one's sense of self-respect and dignity. Prison uniforms have the effect of removing one's individuality. It is preferable for prisoners to wear their own clothing. It is particularly important that clothes are kept clean, decent and are well maintained, and facilities must be provided for inmates to do so. Where prisoners may not wear their own clothing, they should be provided with prison clothes. The principle is that untried prisoners should not be required to wear prison uniforms.
Rule 17 provides that prisoners shall wear their own clothing when removed outside of the prison for any purpose.
Medical Care, and Food
Rule 22 provides that at least one medical officer should be appointed at each prison, and that sick inmates who require special attention should be treated at special institutions or be referred to civilian treatment facilities.
Everyone has the right to a standard of living adequate for the health and well-being of himself and his family. (UDHR Art. 25)
Where a person is deprived of his/her liberty, reliant on the State for the provision of every requirement, daily exercise, and the living conditions are beyond control, then the issue of health care becomes an area of primary concern. Health care should be at least equivalent to that which is available to civilians outside of the prison. There is also the duty to ensure that conditions in prison do not negatively affect the maintenance of health. The obligation is to ensure effective preventative as well as conventional health care.
The Rules provide for prisoners to be examined by a medical officer as soon after admission as is possible, and also whenever it is necessary. They also provide for the segregation of prisoners suspected of having infectious or contagious conditions. This is of significance particularly to prisoners found to be HIV or Aids positive. The World Health Organisation Guidelines on HIV Infection and Aids in Prisons recommends that infected prisoners should not be segregated from the general community, nor should their rights be restricted more than is necessary. Many prison regimes continue to separate these prisoners and discriminate against them in numerous ways.
Complaints concerning food are prevalent in any prison community, but reports about poor diets are disconcerting. Restrictions on diets also occur as part of the punishments imposed in some regimes. Rule 87 permits prisoners to procure food at their own expense from the outside, otherwise it should be provided by the administrations. In some countries, restricted budgets have resulted in the prison failing to provide for inmates at all.
Clean and sufficient water should be available to inmates at all times. The Rules suggest that inmates should never be subject to water restrictions.
Discipline and Punishment
The basic principles are that:
Every human being has the inherent right to life. (Article 6 of ICCPR)
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (Article 7 of ICCPR)
Everyone has the right to liberty and security of person. (Article 9 of ICCPR)
It is recognised that discipline is necessary to maintain control and order in the prison. Lack of order can result in danger to others and violation of staff and inmates' rights. No one should fear for his safety. The Rules determine that discipline and order shall be maintained with firmness, but with no more restriction than is necessary for safe custody and well-ordered community life (SMR27).
The Rules further place prohibition on certain forms of punishment:
Corporal punishment, punishment by placing a prisoner in a dark cell and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences. (SMR31)
Punishment by close confinement or reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he is fit to sustain it. (SMR32)
Instruments of restraint, such as handcuffs, chains, irons and straitjackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. (SMR33)
It is argued by PRI that Rule 32 is in contradiction with Rule 31 and is contrary to contemporary standards of humane behaviour. Reduction of diet is considered as dangerous to the prisoner's health. There is insufficient particularity about what constitutes close confinement, leaving much potential for abuse of discretion, and there are insufficient protective mechanisms against potential abuse.
The ICCPR states that no one shall be required to perform forced or compulsory labour (Art 8.3). This does not preclude a court from imposing a sentence of imprisonment with hard labour as punishment for a criminal offence.
When is Treatment or Punishment Torturous, Cruel, Inhuman or Degrading?
General principles have been developed, and punishment is likely to be in violation of the principles if it is disproportionate to the act committed or to the objective of ensuring discipline and ordered community life; or is unreasonable; or unnecessary; or arbitrary; or it produces undue pain or suffering.
In order to determine whether the punishment violates any of these principles, the following factors should be taken into account: the nature and duration of the punishment; the frequency of repetition; the state of physical and/or mental health of the prisoner; any opportunity for qualified and competent medical verification of the consequences of the punishment and effects on the health of the prisoner.8
Solitary Confinement
Solitary confinement is not strictly prohibited by the Rules, but it is recommended that it is used sparingly and with caution. The UN has noted that prolonged solitary confinement may constitute a violation of the prohibition against torture. The Human Rights Committee9 has decided that solitary confinement in excess of a month was prolonged and violated the rights of the prisoner to be treated with dignity.10
Solitary confinement should not be imposed for an indeterminate period, nor is repeated solitary confinement permitted. Frequently prison officials use solitary confinement as a means of controlling prisoners who have a difficult reputation, despite the seriousness of the particular offence. It is often used when other less drastic remedies are available. Prison administration has a legal duty to discourage the excessive use of solitary confinement. The rules in terms of which solitary confinement may be used should be carefully spelled out, and disciplinary measures taken against staff who act in violation of those rules.
Rule 30 stipulates that no prisoner should be punished twice for the same offence. Consequently solitary confinement coupled with another form of punishment would also constitute a violation of rights.
Physical Restraints
Physical restraints are only permitted under limited circumstances (SMR33):
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By order of the Director if other methods of control fail, or in order to prevent prisoners from inflicting injury on themselves or others. In such cases the Director should consult the medical officer and report to higher authority.
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As a precaution against escape during transfer. Restraints should be removed when appearing before a judicial or administrative authority.
- On medical grounds on the direction of a medical officer.
The use of restraints shall be monitored by the central prison administration. Restraints should never be used for longer than is strictly necessary. The Rules are not very explicit on what would constitute strictly necessary.
Sensory Deprivation
Sensory deprivation, locking prisoners up without light, air or adequate ventilation as a form of punishment is not permitted. It was held in a Zimbabwe case that a confinement in a windowless cell where the electric light burned daily, and the prisoner was allowed 30 minutes of exercise a day, constituted inhuman and degrading treatment.11
Spare Diet
Spare diet is permitted in cases where a medical officer has examined the prisoner and certified in writing that he is fit to sustain it. However, the tendency is now to view this as an inappropriate form of punishment.
The role of medical personnel is outlined in the Rules. A medical officer must examine a person and certify that he/she is fit to undergo close confinement or reduction of diet before it is inflicted (SMR32(1)), and this also applies to any other punishment which is prejudicial to the health of a prisoner. The medical officer is obliged to conduct daily visits with prisoners undergoing such punishments, and should advise on the termination of the punishment on the grounds of mental or physical health.
What Would Constitute a More Acceptable Form of Punishment?
Loss of opportunity for early release and loss of remission are most often used. Any increase of effective time served is a serious infringement of a prisoner's liberty, and it is recommended that this should be limited to the most serious forms of contravention of discipline. In order to avoid arbitrariness the extent of the forfeiture should be expressly stated.
This form of punishment could be inappropriate, or less effective in cases where prisoners are serving life sentences, have been sentenced to death, or are serving long terms of imprisonment.
Protection Against Arbitrary Action
The basic principle applies that the rules and processes by which discipline is maintained in prison should not be arbitrary. This applies to the rules which may be infringed, and to the manner in which the rules are enforced. The Rules therefore state that conduct which may constitute a disciplinary offence, together with the procedures and punishments to be followed by way of enforcement, should be determined by law or regulation. Frequently these disciplinary infractions are hidden in obscure regulations. In keeping with the principle that no-one should be charged with committing an offence without knowledge of the unlawfulness of the action, the regulations should be made available to prisoners. Written disciplinary codes and infringements are not sufficient for illiterate prisoners, and the rules should be explained to them in some other manner. Prison staff also need to be made aware of the content and procedure of the rules.
The Rules should be periodically reviewed so as to update old prison practices and bring them into line with prevailing penal and legal standards. Another principle in support of the protection against arbitrary punishment is the requirement that the rules are not vague or too broad in their compass. They should also be relevant to the situation. In South Africa, a regulation prohibits "sing(ing), whistle(ing) or make(ing) unnecessary noise or cause(ing) unnecessary trouble or nuisance".12 This has been criticised as being too broad in its definition.
Rule 30 states that no prisoner shall be punished except in accordance with the law or regulation. He should not be punished unless he has an opportunity of presenting his case, and a competent authority shall make a thorough examination of the case.
Disciplinary Procedures
A breach of discipline may be dealt with either internally by the prison administration, or externally by prosecution through the criminal courts. However, some conduct may also result in informal disciplinary action as a warning or a rebuke. Only when informal measures fail, or where the infringement is serious should formal disciplinary action be followed.
Rule 30 stipulates that prisoners should be informed of the charge against them and be given the opportunity to defend themselves before being punished. They should not be punished on the basis of a rumour.
Where a prisoner has been disciplined by an internal body, they should have the right of review by a higher authority within the system. This principle is embodied in the Universal Declaration of Human Rights and Principle 30(2) of the Body of Principles.
The Standard Minimum Rules do not permit legal representation in cases of internal disciplinary enquiries. But it is suggested that in cases of complexity or where the potential punishment is severe, then the administration can in its discretion allow legal representation. All the usual legal rights apply in the case where prisoners are prosecuted as for criminal action.
The Rules state that only the prison administration should be responsible for discipline, and that no prisoner should be involved. This is to discourage the frequent practice of using organised prisoner groups or cells for the maintenance of discipline.
Prisoners should only be punished after the disciplinary process has been established. Punishment should not be used as a preventative measure, or as a threat of further action. Nor should prisoners be subject to punishment regimes whilst they are segregated pending the proceedings.
Complaints and Requests
In conjunction with the right to fair treatment and prohibition against arbitrary action or punishment, prisoners have the right to complain without fear of punishment or censure. They should also be able to get a fair and proper hearing about grievances concerning their treatment in prison.
Rule 29 contains guidelines that every prisoner should be provided with written information about the regulations governing the prison, disciplinary procedures and mechanisms for making complaints. It is also stipulated that if the prisoner is illiterate, such information shall be conveyed to him orally.
There should be an internal system for making complaints which is clearly communicated to prisoners. The procedure should ensure that complaints are fully and fairly heard and that there is no subsequent victimisation.
It is not desirable that the body which has the power to adjudicate and decide on punishments is the same body as that which is empowered to hear grievances. This would mean that a body could decide on the validity of complaints in relation to action imposed by itself. This applies equally to internal and external bodies.
The procedure should allow for the complaints to be made to appropriate officials, and for the complaints and responses to be dealt with confidentially if necessary. It should also allow for prisoners to have access to the highest authority in the prison, and to make an appeal to higher levels.
Communication should be encouraged between prisoners and the administration, and efforts should be made to resolve the grievance informally before resorting to the formal complaint procedure. This should not disallow a prisoner from lodging a formal complaint in the first instance. Depriving prisoners of this channel of communication may result in frustration, helplessness, and in turn, to prison disturbance. Prisoners should not be intimidated against complaining. In South Africa, the regulation which states that a prisoner who "lodges false, frivolous or malicious complaints"13 can lead to disciplinary action can be viewed as an infringement of this principle.
Prisoners can be more subtly intimidated by staff who may threaten reprisals for making a complaint. Therefore the authorities are encouraged to make confidential channels of complaints open to prisoners.
In addition to internal channels of complaints, there should also be allowance for prisoner to make complaints outside the prison. The Body of Principles allows for family members, lawyers and non-governmental organisations to make complaints on behalf of prisoners, particularly in regard to his treatment.
In addition to this, Rule 36 allows for the appointment of external inspectors to deal with the complaints of prisoners.
There are a variety of forms that an external complaints mechanism can take. One method is the establishment of a lay visitor scheme or a Board of Visitors as in the United Kingdom. This type of body is composed of trained volunteers from the community representing a range of different interest. It is important though, that its members are reputable and committed, and that they receive appropriate training to enable them to manage the task. In order to be effective, and consequently to gain credibility with inmates and staff, the body must have sufficient power to investigate complaints, and to make recommendations which have a persuasive, if not binding effect, on the authorities.
Another form of independent complaints is through the appointment of a prisons inspectorate or ombudsman. Rule 55 makes provision for "regular inspection of penal institutions by qualified and experienced inspectors, to ensure that these institutions are administered in accordance with existing laws and regulations and with a view to bringing about the objectives of penal and correctional services".
Although the SMR do not refer specifically to independent inspectors, it is becoming generally accepted that the inspectors should be independent of the administration.
Many countries do have a mechanism for independent complaints. Usually this type of body would have national competency and would report to higher management of the prison administration, or would be totally independent of the administration, and would report to a political authority, such as Parliament or the competent minister. This type of body usually investigates complaints from any person, including a prisoner, against the administration. It may also conduct inspections of prisons for compliance with policy, standards and financial procedures.
Another important mechanism whereby prisoners can lodge complaints is with external bodies such as judicial authority, NGOs and human rights groups, media, the police, etc. In all the instances, the prisons need to allow direct and confidential communication from the prisoner.
Access to Legal Assistance
The UDHR (Article 7) states that everyone is equal before the law and is entitled to equal protection of the law. Article 8 also grants every person the right to an effective remedy by the competent tribunals for acts violating his rights. Frequently, access to legal assistance determines the extent of a person's protection from the law, and this is especially pertinent to any person who has been deprived of their liberty.
Contacts with a lawyer can be one of the most important mechanisms of safeguarding a prisoner's rights. The right to confidential and unlimited access to lawyers is especially important. However, the right is also important for sentenced prisoners.
Rule 93 (SMR) provides for legal visits. The prisoner should be allowed access to writing material and interviews with legal advisors may be within sight, but out of hearing of the prison officials.
The right of prisoners to have access to lawyers is also contained in the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment (Principle 18) and the UN Basic Principles on the Role of Lawyers. Its Article 8 provides, that
All arrested, detained and imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer without delay, interception or censorship and in full confidentiality Such consultations may be within sight, but not within the hearing of law enforcement officials.
This applies to all forms of communication with lawyers, including telephones calls and correspondence.
The above principles refer to lawyers, not to legal advisors, leaving the possibility that the administration may disallow contact with an unqualified legal advisor. This should not be the position, as lawyers are expensive and frequently beyond the affordability of the average prisoner. To limit access to lawyers only would have the effect of denying many people the right to legal assistance and would consequently be in breach of the principle.
Para-legals, articled clerks, and unqualified legal persons should therefore be allowed to assist prisoners. The difficulty with non-lawyers may arise in establishing the credentials of the persons. Obviously, in the interest of both the prisoner and the administration, the situation where bogus or unqualified persons offer legal assistance and guidance should be avoided. Given the confidential nature of the consultation, it would be unwise in the interests of security to allow persons without the necessary credentials access to prisoners.
Where a person is articled to a qualified lawyer, credentials may easily be established with the relevant legal association or with the principal himself/herself. In some countries there exist para-legal boards which train and issue certificates to para-legals, but more often than not they are disorganised. Organisations which offer such assistance should perhaps negotiate with the prison administration to gain their credibility and obtain permission to assist prisoners.
Untried Prisoners
Persons arrested or imprisoned on a criminal charge, who are detained in police custody or in a prison, but who have not yet been tried or sentenced, are referred to as untried prisoners.
This is an important group of prisoners. As they have not been found guilty, they are presumed innocent until the law finds them guilty. Prisoners who have not yet been sentenced also form part of this category. They are regarded as having all the rights and protections of sentenced prisoners as well as further protections.
Unconvicted prisoners are presumed to be innocent and shall be treated as such. (SMR, Rule 84(2))
Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. (ICCPR Art. 10(2) (a))
Rules 86-91 (SMR) determines that such prisoners should be able to procure their food from outside, wear their own clothing if suitable, or to wear different clothing issued by the prison to that provided to sentenced prisoners. Although they should not be required to work, they should be allowed to work. They should be able to obtain books or other resources. They are also entitled to be visited by their own doctor or dentist if the grounds are reasonable.
Maintaining contact with their families and legal advisors is even more important for untried prisoners. Consequently Rule 92 (SMR) provides that they should be able to inform their families where they are being detained. They should be able to communicate with them and receive visits subject only to security requirements.
Pre-trial prisoners should be allowed to contact legal aid advisors. They are able to receive visits from their legal advisors to discuss their defence.
Many breaches of human rights occur while prisoners are held in police lockups, usually during investigation. It is important that prison and police administrations are aware that all the rights, including the prohibition on torture, cruel, inhuman or degrading treatment, does not occur during their detention.
The Standard Minimum Rules provide only a basic framework for the treatment of untried prisoners. Following the principle that untried prisoners are deemed to be innocent, the administration should attempt to provide better conditions than those which are provided for in the Rules. However, in reality, prisoners awaiting trial constitute a transient population and often resources are not concentrated on these prisoners. They do not have the same access to recreation and occupational programmes offered by the prison. In many instances, they are also accommodated in more crowded conditions than sentenced prisoners, despite the principle that awaiting trial prisoners should be accommodated in single cells (SMR 86) and shall be detained in separate institutions.
Rule 95 (SMR, added 1977):
…persons arrested or imprisoned without charge shall be accorded the same protection as that accorded under part I and part II section C (persons under arrest or awaiting trial and prisoners under sentence, without any due imposition of rehabilitation measures).
Notes:
2 Raymond v Honey (1982) 1 All ER 756
4 Art 1 of the 1984 UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
5 Adopted by General Assembly resolution 43/173 of 9 December 1988.
6 Penal Reform International, Lack of Implementation of the United Nations Standard Minimum Rules for the Treatment of Prisoners, 1995
7 Making Standards Work, an international handbook on good prison practice, The Hague, 1995
8 Making Standards Work, at 50
9 The Human Rights Committee is a treaty body established by the Covenant on Civil and Political Rights with the task of reviewing compliance with the Covenant
10 Making Standards Work, at 51
11 Ibid, at 55, Conwayo v Minister of Justice and Legal and Parliamentary Affairs, 1991, (1) ZLR 105 (SC)
12 Regulation 99(1) to the Correctional Services Act No 8 1959, South Africa
References
Africa Watch Prison Project Prison Conditions in South Africa, USA, Human Rights Watch, 1994
Penal Reform International Making Standards Work: An international handbook on good prison practice, The Hague, Penal Reform International, 1995
Penal Reform International Prison Conditions in Africa, London, Penal Reform International, 1994
Penal Reform International Lack of Implementation of the United Nations Standard Minimum Rules For the Treatment of Prisoners, London, Penal Reform International: 1995
Van Zyl Smit, D. South African Prison Law and Practice, Durban, Butterworths: 1992
Penal Reform International Introduction to Human Rights Training for Commonwealth Prison Officials, London, Penal Reform International: 1993
Centre for Human Rights Crime Prevention and Criminal Justice Branch, Professional training series No 3. Human Rights and Pre-Trial Detention, Geneva, United Nations: 1994
Human Rights and International Law, The Netherlands, Council of Europe Press, 1995
Redo, Dr Slawomir, African Prisons and the United Nations Standards and Norms, Austria, unpublished paper.
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