UN Standard Minimum Rules for the Treatment of Prisoners

Revision process

Olivia Rope 14 November 2013

www.penalreform.org

Outline • About Penal Reform International • Timeline of the revision process for the

SMR • Targeted revisions approach – areas for

revision • Substantive issues • Monitoring bodies and SMR • Detention monitoring tool: support

preventative mandate www.penalreform.org

Penal Reform International

Promoting fair and effective criminal justice

• Origins • Headquarters in London • Regional Offices • Partners

www.penalreform.org

PRI priorities

• Reduction of use of imprisonment • Prevention of torture and ill-treatment • Children in conflict with the law • Abolition of the death penalty and humane

alternatives • Proportionate and sensitive response to

women offenders and prisoners

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Methods • Technical assistance

– Legislative and regulatory frameworks – Reference and guidance publications – Training

• Practical programmes – Detention conditions

• Standard setting – SMR

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Outline • About Penal Reform International • Revision process for the SMR • Targeted revisions approach – areas for

revision • Substantive issues • Monitoring bodies – methodology • Detention monitoring tool: support

preventative mandate

www.penalreform.org

Start of the process December 2010: General Assembly Resolution • Requesting the UN Crime Commission to

establish an open-ended intergovernmental expert group (IEGM)

• Mandate of IEGM: ‘exchange information on best practices, on (…) existing international law, and on the revision of existing UN Standard Minimum Rules for the Treatment of Prisoners so that they reflect recent advances in correctional science and best practices.’

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Need for revision

• SMR adopted in 1957: no ICCPR, CAT, soft law standards on detention

• Outdated Rules – for example – Rule 32: reduction of food as disciplinary punishment – No guidance on body searches – Rule 93: Legal assistance limited – Rule 55 on independent inspection – Healthcare provisions (Rule 22 …) – Rules 82 and 83: ‘insane and mentally abnormal’

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Relevance of SMR

• Comprehensive document on conditions of detention and treatment of prisoners

• ‘Blueprint’ for national prison rules

• Extensively used as a reference by different HR treaty bodies

www.penalreform.org

Outline • About Penal Reform International • Timeline of the revision process for the

SMR • Targeted revisions approach – areas for

revision • Substantive issues • Monitoring bodies and SMR • Detention monitoring tool: support

preventative mandate www.penalreform.org

Targeted changes approach

• First IEGM in Vienna, February 2012

• Alternative ‘compromise’ – identification of areas that have become the most outdated and submit them for revision

• ‘Not lower any of the existing standards’ – basis of negotiations for revisions

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‘Should not lower any existing standards’

• UN General Assembly resolution on Torture and other cruel, inhuman or degrading treatment or punishment, 22 October 2013, A/C.3/68/L.33:

• Human Rights Council resolution on human rights in the administration of justice, 23 September 2013, A/HRC/24/L.28:

• Crime Commission resolution, 25 April 2013, UN Doc. E/CN.15/2013/L.22/Rev.1: (endorsed by ECOSOC, 20 September 2013, E/RES/2013/35

• Report and recommendations of the IEGM in Buenos Aires, 13 December 2012, UNODC/CCPCJ/EG.6/2012/4

• UNGA resolution, 20 December 2012 A/RES/67/188 • ECOSOC resolution, 10 August 2012, E/RES/2012/13 • Crime Commission resolution, April 2012 • First IEGM, Vienna, 16 February 2012,

UNODC/CCPCJ/EG.6/2012/1:

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Areas of revision

1. Respect for prisoners’ inherent dignity and value as human beings

2. Medical and health services 3. Disciplinary action and punishment, including

the role of medical staff, solitary confinement and reduction of diet

4. Investigation of all deaths in custody, as well as any signs or allegations of torture or inhuman or degrading treatment or punishment of prisoners

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Areas of revision (cont.)

5. Protection and special needs of vulnerable groups deprived of their liberty

6. The right of access to legal representation 7. Complaints and independent inspection 8. Training of relevant staff to implement the SMR 9. Consideration of the ‘requirements and needs

of prisoners with disabilities' And the replacement of outdated terminology www.penalreform.org

Second IEGM: Buenos Aires • Second IEGM in December 2012 • Significant progress / strengthened

consensus • Submission of ‘Essex Paper’ proposing

concrete wording for Rules up for revision: Outcome of independent experts meeting at Essex University, co-hosted by PRI

Search ‘Essex’ on PRI’s website (in 5 languages)

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Next steps • Crime Commission, April 2013 extended

mandate • Third IEGM in Brasilia, January 2014

(TBC) • Negotiations on actual wording • UNODC Working document

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Submissions ahead of next IEGM

• Special rapporteur on Torture, report to the General Assembly with the thematic focus on the SMR Review process

• Noted prohibition of torture is absent from Rules

• Offered procedural standards and safeguards to be applied at a minimum

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SR on Torture Report on SMR • Solitary confinement: ‘only in very

exceptional circumstances, as a last resort, for as short a time as possible and with the established safeguards in place after obtaining the authorisation of a competent authority subject to independent review’

• Free, fair and transparent access to medical services – including obligation to detect signs of ill-treatment or torture

• Other issues covered - available on PRI’s website

www.penalreform.org

Outline • About Penal Reform International • Timeline of the revision process for the

SMR • Targeted revisions approach – areas for

revision • Substantive issues • Monitoring bodies and SMR • Detention monitoring tool: support

preventative mandate www.penalreform.org

Legal representation: SMR • Current text of the SMR:

– Rule 93: Right to receive visits from legal counsel but limited to pre-trial detention and for the ‘purpose of defense’

– Rule 37: communication with family and ‘reputable friends’

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Legal representation

UN Basic Principles on the Role of Lawyers (1990) Principle 8

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All arrested, detained or 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.

Legal representation Access to legal aid for prisoners

UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2013) • Comprehensive… accessible, effective,

sustainable and credible • Unhindered access to legal aid providers

for detained persons

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Legal representation Principle of confidentiality

• UN Body of Principles (Principle 33) • UN Basic Principles on the Role of Lawyers

(Principle 22) • UN Legal Aid Principles (Principle 12)

‘…States should ensure that legal aid providers …are able to consult and meet with their clients freely and in full confidentiality’ www.penalreform.org

Disciplinary measures (SMR Rules 31 and 32)

• Prohibitions of reduction of diet and water, and

limit of family visits for punishment • Remove role of medical officer in punishments • ‘Solitary confinement’: exceptional cases (re:

SR Torture’s report) and inclusion of absolute prohibition for juveniles and pregnant women, women with infants and breastfeeding mothers (UN Rules for the Protection of Juveniles Deprived of their Liberty and UN Bangkok Rules) www.penalreform.org

Inspections (Rule 55) • Inclusion of ‘independent’ (external)

inspections/monitoring

• Broaden scope from current text (purpose to ensure ‘objectives of penal and correctional services’ are met) to ensuring ‘rights of prisoners’

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Inspections – existing bodies • Istanbul Principles (Principle 7) • Guidelines for Action on Children in the

Criminal Justice System (Guideline 21) • OHCHR Manual on Human Rights Training for

Prison Officials • Principles and Best Practices on the Protection

of Persons Deprived of Liberty in the Americas • European Prison Rules • CPT Standards • OPCAT

Demonstration of importance and proven

effectiveness of regular & independent inspections www.penalreform.org

Monitoring bodies and SMR • SMR: point of reference for assessments of

conditions

• Revision of SMR and OPCAT both – preventing torture and ill-treatment – ensuring humane detention conditions

• Reactive and preventative

Comprehensive analysis of risk situations and

recommend systemic changes

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Detention Monitoring Tool: Addressing risk factors to

prevent torture and ill-treatment • Developed by PRI and Association for the

Prevention of Torture (APT)

• Analysis and practical guidance to fulfil preventative mandate of monitoring bodies

• Piloted with NPM in Georgia • English and Russian

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Contents of PRI-APT Detention Monitoring Tool

Four thematic papers • Introduces the issue in context of

international standards and human rights norms

• Examines in detail the risk factors • Illustrate cases and country examples • Recommendations on how to address issue

in monitoring bodies’ work www.penalreform.org

Contents of PRI-APT Detention Monitoring Tool

LGBTI persons deprived of their

liberty: a framework for preventative monitoring

Balancing security and dignity: a framework for preventative monitoring

Institutional culture in

detention: a framework for preventative monitoring

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Women in detention: a guide

to gender-sensitive

monitoring

Contents of PRI-APT Detention Monitoring Tool

Five factsheets • Practical guidance on systemic issues that

are particularly high risk factors • Lists relevant international standards • Identifies types and situations of risk • Provides checklists of questions that

monitoring bodies could enquire into • Suggests what monitoring bodies can do

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Contents of PRI-APT Detention Monitoring Tool

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Body searches

Video-recording in

police custody

Pre-trial detention

Instruments of restraint

Staff working

conditions

Factsheet: Staff working conditions

Context: Respect for human rights of prisoners is hugely dependent on working conditions of staff.

The prison officer, Routledge, 2012

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On any one day prison officers can be

required to be ‘gatekeepers, agents

of criminal justice, peacemakers, instruments of

change and delivers and interpreters of

policy’

Factsheet: Staff working conditions

Main standards: UN and regional instruments Types and situations of risk: • Institution and culture (including prison

management, discrimination…) • Recruitment, training and initial placement • Conditions of service • Prisoner officer well-being

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Factsheet: Staff working conditions

What can monitoring bodies do? • Gather background information • Include staff working conditions as a

component of visits (eg. interview members of staff)

• Act on issue (eg. raising concerns with prison director, include recommendations in report, publish thematic reports/opinion pieces)

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Resources All available at www.penalreform.org

• Section on SMR Review (under Global Advocacy)

– Essex Paper – Links to state submissions and meeting

documentation – Joint NGO Briefing on review process – Updates on next steps

• Torture Prevention resources including ‘Detention Monitoring Tool’

Email: orope@penalreform.org www.penalreform.org