Ill-treatment of persons deprived of their liberty can take different forms. While the deliberate infliction of torture and other ill-treatment is explicitly prohibited by law, international and regional jurisprudence as well as other standard setting bodies have increasingly recognised that conditions of detention in particular the cumulative effect of overcrowding, poor physical conditions and inadequate activity regimes can also amount to inhuman and degrading treatment.
Individuals in detention are particularly vulnerable as they have forfeited one of the most fundamental aspects of individual autonomy, the freedom of personal liberty. They thereby find themselves in a situation of powerlessness in which they depend on the authorities (prison or police) for the fulfillment of their basic human needs. States are therefore under the obligation to ensure that conditions of detention allow the maintenance of physical and psychological well-being of individuals in their custody regardless of the reasons for their imprisonment. The conditions of detention must be such as not to aggravate the suffering inherent to such a situation.
The treatment of persons deprived of their liberty does not only depend on physical conditions of the place of detention but also on the regime to which the detainees are subjected, including access to health care and vocational/exercise activities.
International and regional legislation and standards
The standards for conditions of detention are derived from the obligation to treat detainees with dignity and humanity set out in article 10(1) ICCPR. In addition, international and regional standards (soft law) for conditions of detention provide a detailed body of principles and rules specially designed to ensure a minimum standard of treatment of detainees. While a number of rules and principles apply to all persons deprived of their liberty, some of them apply exclusively to convicted prisoners and still others detail specific rules for pre-trial detainees. Article 10(3) ICCPR stipulates that the treatment of convicted prisoners should aim for their social rehabilitation.
Generally, the body of rules and principles concerning conditions of detention in police custody is less comprehensive as individuals are meant to be held in police premises only for a very short period of time. However, in some countries individuals are held in police custody in extremely poor conditions for several months.
International human rights law and standards provide for the separation1 of and special measures for particular categories of detainees, responding to the special situation and needs of such groups. Most importantly, article 10(2) ICCPR and a number of regional and international standards call for the segregation of convicted and pre-trial, as well as adult and juvenile detainees. The CPT has developed special criteria for women and juveniles deprived of their liberty.2
The Human Rights Committee found violations of article 10 with regard to conditions of detention and in a number of cases it even came to the conclusion that the conditions of detention amounted to a violation of article 7 ICCPR (prohibiting torture and other cruel, inhuman or degrading treatment). Similarly the European Court of Human Rights concluded in several cases that conditions of detention are sufficiently severe to contravene article 3 ECHR.
Furthermore, the Human Rights Committee noted that while the standards for conditions of detention may vary from country to country they are not entirely dependent on material resources.3 The ECtHR confirmed that the lack of resources cannot in principle justify prison conditions which are so poor as to reach the threshold of treatment contrary to article 3.4
Accommodation, basic needs and other aspects of treatment
According to the Standard Minimum Rules for the Treatment of Prisoners and the European Prison Rules persons deprived of their liberty have the right to an adequate standard of living, including adequate food, drinking water, and access to adequate and clean sanitary facilities. Adequate accommodation includes adequate cubic content of air and floor space, lightening, heating and ventilation. With respect to the provision of basic needs, prisoners are also entitled to a separate bed and sufficient bedding, as well as adequate clothing that does not degrade or humiliate its wearers.
In addition to poor physical conditions of detention, the lack of sufficient health care is a frequent aspect of ill-treatment of persons deprived of their liberty. International standards therefore stipulate that all detainees have a right to access to a medical doctor whenever needed and shall be given a medical examination as soon as they have been admitted to a prison or place of detention. In prisons, a proactive and an independent medical service that undertakes regular medical examination of prisoners, serves as an essential safeguard against ill-treatment. According to the standards of the CPT, detainees are not only entitled to emergency care, but to any other treatment required by their psychological and physical condition. Failure to provide necessary medical assistance may amount to ill-treatment.5
Regular contacts with family and friends not only helps to combat the destabilising effects of imprisonment and to achieving the aim of rehabilitation, but in addition constitutes an important safeguard against torture and ill-treatment in detention and contributes to public scrutiny of the conditions of detention.
A further essential element of ensuring the well-being of detainees is the provision of adequate exercise and recreational facilities. International standards stipulate that each prisoner should be allowed at least one hour of exercise per day in the open air,6 even when prisoners are punished with solitary confinement.7
Overcrowding is a major problem in prisons worldwide. An excessive prison population exacerbates the often already poor material conditions in prisons and makes it impossible to deliver the minimum standards of treatment. It therefore endangers the basic rights of prisoners. Overcrowding has cumulative negative effects extending to all aspects of life in prison including accommodation, health care, ventilation, floor space, bedding, personal hygiene and room temperatures. This results in a poor hygienic situation conducive to infectious diseases. Furthermore, the opportunities of vocational activities are reduced. Overcrowding can also give rise to tensions between prison staff and detainees and can reinforce internal hierarchies among prisoners resulting in inter-prisoner violence and the fostering of corruption and criminal activities.8 Overcrowding often makes the separation of men from women, minors from adults, and pre-trial from convicted detainees impossible. The ECtHR has in various cases found that detention in severely overcrowded conditions amounts to degrading treatment in violation of article 3 ECHR.9 The Human Rights Committee and the Committee against Torture have also expressed concerns about conditions of overcrowding.10
1 See e.g. Rule 8 of Standard Minimum Rules for the Treatment of Prisoners (SMR).
2 See e.g. CPT/Inf (99) 12, paras. 20-42, and CPT/Inf (2000) 13, paras. 21-33.
3 HRC, General Comment No. 9, para. 1 and General Comment No. 21, para. 4; see also HRC, Mukong vs. Cameroon, No.458/1991, para. 9.3.
4 See ECtHR, Poltoratskiy v. Ukraine, Judgment of 29 April 2003, paras. 136-149.
5 See e.g. ECtHR, Igorov v. Bulgaria, Judgment of 7 July 2004, para.95.
6 See Rule 21(2) of SMR; Rule 27(1) of European Prison Rules.
7 CPT/Ing (92) 3, at para.48.
8 See e.g. reports of UN Special Rapporteur on Torture, Mission to Indonesia UN Doc.A/HRC/7/3/Add.7 (10 March 2008) para. 27; and on his mission to Sri Lanka, UN Doc. A/HRC/7/3/Add.6, (26 February 2008) para.83; and on his mission to Paraguay, UN Doc. A/HRC/7/3/Add.3 (1 October 2007) para. 65.
9 See e.g. ECtHR, Kalashnikov v. Russia, Judgment of 15 July 2002, para. 97; Modarca v. Moldova, Judgment of 10 May 2007, paras. 68-89.
10 See e.g. the CAT-Committee's Concluding Observations on the State Report of Latvia, UN Doc. CAT/C/CR/31/3 (5 February 2004); Concluding Observations on the State Report of Greece UN Doc. CAT/C/CR/33/2 (10 December 2004); Concluding Observations on the State Report of Nepal UN Doc. CAT/C/NPL/CO/2 (13 July 2005); for the HRC, see Concluding Observations on the State Report of Thailand UN Doc. CCPR/CO/84/THA(8 July 2005); Concluding Observations on the State Report of Greece UN Doc. CCPR/CO/83/GRC(25 April 2005).