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New Zealand Human Rights Commission Submissions |
Last Updated: 31 May 2015
Submission by the
Human Rights Commission
Corrections
Amendment Bill
to the Law and Order Select
Committee
12 April 2012
Contact person:
Jessica
Ngatai
Policy Analyst
Human Rights Commission
Direct dial 09 306
2653
Email: JessicaN@hrc.co.nz
Submission by the Human Rights Commission on the Corrections Amendment Bill 2012
1. Introduction
1.1 The Human Rights Commission appreciates the opportunity to comment on the Corrections Amendment Bill. The Commission’s primary functions include advocating and promoting respect for, and an understanding of, human rights in New Zealand society. An important part of this role involves assessing domestic legislation, and providing advice and guidance, on human rights compliance.
1.2 The Commission also has a role in relation to the monitoring of places of detention for the purposes of preventing ill treatment under the Optional Protocol to the Convention against Torture (OPCAT). The Commission is the designated Central National Preventive Mechanism under the OPCAT, and in this role, works closely with the Ombudsmen, who have responsibility for monitoring prisons.
1.3 The Commission has read the Ombudsmen’s submission on this Bill, and records its support for that submission.
1.4 The Office of the Children’s Commissioner, the Independent Police Conduct Authority and the Inspector of Service Penal Establishments, are the other organisations comprising the independent monitoring system under the OPCAT. New Zealand ratified the OPCAT in 2007 and designated the above organisations as National Preventive Mechanisms (NPMs).
1.5 Article 19 of OPCAT sets out the functions of NPMs, which include “19 (c) to submit proposals and observations concerning existing or draft legislation”. Together with a programme of regular visits to places where people are deprived of liberty, these activities have the aim of “improving the treatment and the conditions of the persons deprived of their liberty and to prevent torture and other cruel, inhuman or degrading treatment or punishment”.[1]
1.6 This submission, and the OPCAT monitoring system, is grounded in the international human rights framework. The Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), the Convention on the Rights of the Child (UNCROC), the Convention on the Rights of Persons with Disabilities (CRPD) and the Convention relating to the Status of Refugees (Convention on Refugees) all make provisions for the rights of people in detention. [2] Fundamental human rights requirements are that:
1.7 In addition to the binding international instruments, a range of United Nations documents provide important guidance on how these obligations are to be met.[5] These include the UN Standard Minimum Rules for the Treatment of Prisoners (SMR),[6] which are referred to in the purpose section of the Corrections Act 2004:
S5 Purpose of corrections system
(1) The purpose of the corrections system is to improve public safety and contribute to the maintenance of a just society by—
...
(b) providing for corrections facilities to be operated in accordance with rules set out in this Act and regulations made under this Act that are based, amongst other matters, on the United Nations Standard Minimum Rules for the Treatment of Prisoners; ...
1.8 This submission also draws on the findings of the Commission’s review of the status of human rights in New Zealand. The report, Human Rights in New Zealand 2010[7] analyses the full spectrum of human rights, and identifies priority areas where further action is required in order to better ensure the dignity, equality and security of everyone in New Zealand. In relation to prisons, the report noted numerous improvements over the five years from 2004-2010, including the enactment of the Corrections Act and advances in employment, rehabilitation and drug and alcohol treatment. Priority areas for action identified in the report include: the need to strengthen safeguards for prisoners, and to further develop prisoner access to health care and mental health services.
1.9 A significant and longstanding issue of concern is the unacceptably high, disproportionate number of Māori in prison. One of the priorities identified in Human Rights in New Zealand 2010 was the urgent need to address this issue, by committing to specific targets and timelines for reducing the disproportionate number of Māori in prison.
General comment
1.10 The Commission agrees with the statement in the Bill’s explanatory note that “overall, current legislation continues to provide a sound framework for the operation of the corrections system”. The Commission also welcomes the commitment to “managing prisoners in a manner that is safe, secure, humane, effective and efficient”. The Commission does not, however, consider that greater efficiency requires, or justifies, erosion of legislative protections for people deprived of their liberty.
1.11 Overall, the Bill proposes a number of measures for greater efficiency, by removing layers of oversight, or by extending powers to additional people (including staff of privately managed prisons). However, the cumulative effect of some of the changes in the Bill has the potential to weaken the Act’s human rights protections in significant ways. These changes appear to be in breach of binding international obligations that New Zealand has committed to.
1.12 Human rights standards recognise that the nature of imprisonment means that human rights may be limited in some circumstances, but requires any such incursions into individual rights to be accompanied by appropriate safeguards. The Bill removes a number of procedural safeguards that ensure oversight and accountability around the use of coercive powers. These checks and balances are crucial in situations where when the powers of the state are exercised upon those in their custody. As the Commission has previously noted: [8]
Detention raises fundamental human rights issues: A key reason for human rights protections is to mediate the exercise of State power over citizens. State power is at its greatest when citizens or others are detained by the State, and people in detention are extraordinarily vulnerable to abuses of that power.
1.13 The enactment of the Corrections Act 2004, and the strengthened human rights protections it provided, has been commended by international human rights bodies.[9] It is important to New Zealand’s reputation that these protections are not removed or undermined.
Summary of recommendations
1.14 In summary, the Commission:
Comment on clauses in the Bill
2. Searches
2.1 International human rights bodies and New Zealand Courts have noted the inherently degrading nature of strip searches. In Taunoa v Attorney-General, Justice McGrath commented that strip searching is of its nature “demeaning”, and that “the practice must be closely regulated”.[11]
2.2 Another New Zealand Supreme Court Justice has stated: [12]
Most central to all human rights is the right to dignity. It is the source from which all other rights are derived. Dignity unites the other human rights into a whole.
2.3 The Commission considers that respect for human dignity, as well as being a fundamental and universal human rights obligation, is linked to reintegration and rehabilitation. Both (assisting in rehabilitation and reintegration, and compliance with human rights standards) are key purposes of the corrections system.[13]
2.4 Research undertaken for the Commission into human rights in New Zealand prisons found that human rights values have a key role in the rehabilitation of prisoners.[14] The report, Human Rights and Prisons, notes international literature that shows that attention to human rights in prisons helps reduce conflict, strengthens prisoners’ chances of rehabilitation, and ultimately leads to safer societies.
2.5 The Commission, therefore, considers that ensuring human dignity is recognised and respected requires high thresholds and protections around the use of measures that impinge so significantly upon individual privacy and dignity.
2.6 Overseas research into the psychological impacts of strip searching on prisoners indicates that it may have a significantly negative impact on the female prison population,[15] and questions the effectiveness of strip searching both as a contraband-control and as a security strategy. International research has also shown that the number of female prisoners who have suffered violent and, in particular, sexual abuse is very high.[16] There is, therefore, a high potential for strip searches to re-victimise female prisoners.
2.7 Given the nature and ramifications of strip searches, international human rights bodies have stated that resort to strip searching of prisoners must: (a) be based on an individual assessment and (b) be carried out in such a way as to respect, as far as possible, the dignity of the prisoners concerned.[17]
2.8 Proposals in the Bill raise concerns about compliance with both of those requirements. The Bill both lessens the safeguards around strip searches and extends the situation in which the most invasive search methods may be used.
2.9 Currently the Act imposes a ‘reasonable grounds’ threshold and requires a prison manager’s authorisation for strip searches. It provides an exemption where such requirements would compromise health, safety or security. We see no reason for reducing these safeguards as the Bill proposes. Although the Bill asserts that these requirements “introduce unnecessary delays”, we consider that they are fundamental safeguards for ensuring accountability and oversight of the exercise of this power. A ‘reasonable grounds’ requirement provides a degree of protection against the inappropriate or routine exercise of this power.
2.10 International human rights bodies require “a strict policy of risk-assessed strip searches only”.[18] The European Committee for the Prevention of Torture (CPT)[19] has stated:[20]
A strip search (and even more so a visual inspection of the perineal area), is a very invasive and potentially degrading measure. To apply it in every case is, in the CPT’s view, excessive and unnecessary. Of course, detained persons should always be searched in order to ensure their own safety and the safety of KP officers. However, a strip search should be carried out only when there are reasonable grounds to suspect that a detained person may have hidden on him/her items that may be used to harm him-/herself or others or that may be evidence of a crime and such a search is necessary in order to detect these, an ordinary search being unlikely to result in their discovery. Carrying out such a search should require the authority of a senior officer and should be subject of a written policy, setting out in clear terms the circumstances in which it is permissible to resort to it. ...
2.11 As mentioned above, the Commission is part of the monitoring system under OPCAT, which is aimed at helping New Zealand to meet its international obligations to prevent torture and ill treatment of people in detention. A key principle of torture prevention is the restriction and regulation of instruments that have the potential to be misused.
2.12 The inherently degrading nature of strip searches renders the need for safeguards around their use even more necessary. The Commission therefore opposes the extension of these powers and the removal of these safeguards in the Bill.
3. Restraint
3.1 Any use of mechanical restraints represents a significant interference with individual rights and freedoms. Accordingly, human rights standards require stringent safeguards and restrictions around their use.
3.2 Commentary by international human rights bodies provides guidance on how the standards are to be applied.[21] Minimum standards include the following:[22]
Regarding its appropriate use, immobilisation should only be used as a last resort to prevent the risk of harm to the individual or others and only when all other reasonable options would fail satisfactorily to contain those risks; it should never be used as a punishment or to compensate for shortages of trained staff; it should not be used in a non-medical setting when hospitalisation would be a more appropriate intervention.
Any resort to immobilisation should be immediately brought to the attention of a doctor in order to assess the need for the measure, as opposed to certifying the individual’s fitness for it.
The duration of fixation should be for the shortest possible time (usually
minutes rather than hours) [emphasis added]. The exceptional prolongation of
restraint should warrant a further review by a doctor. Restraint for periods of
days at a time cannot have any justification and would amount to ill
treatment.
3.3 As emphasised in the above quote, the use of restraint for periods of hours should only occur in exceptional circumstances. The Commission submits that as such, recourse to Visiting Justices for approval of prolonged restraint, would not be a barrier to the effective and efficient management of prisons.
3.4 UN Principles support the involvement of medical personnel to assess, on medical criteria, whether restraint is necessary in order to protect the health or safety of a prisoner.[23]
3.5 The regulatory impact statement describes the current situation as involving: “an unnecessary requirement for Visiting Justices to approve the application of a restraint beyond 24 hours – such an extension should only be sought to prevent a prisoner from self harming, so a medical officer is best placed to advise on this matter.
3.6 The Commission agrees that the involvement and advice of a medical officer is crucial. However, the involvement of a Visiting Justice ensures a further layer of checks and balances that are an important protection when individuals’ rights are limited in this way.
3.7 Regular monitoring under the OPCAT has highlighted some issues around policies and practices regarding use of restraints and searches of people in detention. There are some indications of local variations in policy and practice, and that some powers are being used on a more routine basis than permitted.[24]
3.8 Issues have also been raised by international human rights bodies. In 2009 the UN Committee against Torture stated: [25]
The Committee is concerned at the use by prison authorities of instruments of physical restraint that may cause unnecessary pain and humiliation. (arts. 11 and 16)
3.9 The Committee recommended that:
... The State party should
keep under constant review the use of instruments of restraint that may cause
unnecessary pain and humiliation,
and ensure that they are used only when
necessary, and that their use is appropriately recorded.
3.10 While medical oversight, which is a core protection and human rights requirement, is retained by the Bill, the Commission do not support the removal of the role of visiting justices from the approval process.
4. Segregation
4.1 Human rights minimum standards are premised on the notion that conditions amounting to ‘isolation’ from others should be a measure of last resort, used for as short a time as possible, and accompanied by safeguards such as monitoring, review and appeal processes. Medical oversight is a key element of these safeguards.
4.2 While we can see some benefit in transferring administrative elements of the medical officer’s role to a health centre manager, we feel that (as above in relation to restraints) the involvement of a medical officer is an important protection when a prisoner is segregated. Given the serious restriction of rights that segregation represents, and the health risks associated with it, particularly when the reason for segregation is the risk of self-harm, the Commission believes that this should remain a responsibility of a medical officer. We therefore oppose the relaxation of requirements for medical visits to segregated prisoners.
5. Drug and Alcohol Offences
5.1 While the Commission supports efforts to effectively eliminate contraband in prisons, it has concerns about the proposed amendments in clause 36 that make it an offence to “consume, administer or supply any substance with intent to dilute or contaminate” a sample. The UN Standard Minimum Rules for the Treatment of Prisoners require that “drinking water shall be available to every prisoner whenever he needs it”.[26] The Commission is concerned that the new provision may result in limits on the availability of drinking water to prisoners.
6. Health Care
6.1 International human right standards set out the range of responsibilities of medical officers to assess, treat and monitor prisoners’ health. These include the following:[27]
22. (1) At every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should be organized in close relationship to the general health administration of the community or nation....
24. The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical or mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.
6.2 The Bill proposes that some functions of a medical officer are transferred to the Health Centre Manager (who may be a medical practitioner or a nurse). It may be that removing administrative responsibilities from medical officers to Health Centre Managers may be consistent with their roles and free up medical officers for other medical duties. As the Ombudsmen have noted:[28]
The Bill recognises that, in reality, prison Health Centre Managers employed by the Department have the central role of ensuring that the health needs of prisoners are met. Current legislative provisions place contracted Medical Officers at the forefront of the provision of Health Services to prisoners. The Bill proposes that this role should be a function of the Health Centre Manager.
6.3 The Commission does have concerns however, that the changes in the Bill do not address issues around provision of mental health care (cf SMR 22 and 24 above), and may in fact lessen the availability of psychiatric expertise.
6.4 The Ombudsmen’s report reiterates longstanding concerns regarding the high prevalence of mental health issues amongst prisoners, and identifies shortcomings in the mental health care available.[29]
Psychiatric morbidity, or the rate of mental illness or proportion of mentally ill persons in a given locality... is prevalent amongst prisoners. Most of those in prison with mental health problems, including the majority of those with complex treatment needs, are managed in prison primary care. Significant unmet needs in prison are reported in terms of common mental health problems including depression, anxiety, emotional distress and adjustment problems.
We found primary mental healthcare in prisons variable. Many Medical Officers have limited training in psychiatry, and prison nurses who provide a significant amount of the primary care service are not supported from a clinical perspective in dealing with these, often difficult, cases. From our interviews, relationships with forensic teams were good, but Medical Officers describe a shortage of counselling and therapeutic interventions for primary mental health and substance misuse problems.
Some prison healthcare teams had no mental health nurses to provide specialised care to those who fell beneath the threshold of severe and enduring illness. Prison nurses are a mix of those qualified in general nursing and in mental health nursing. On the whole, they do not have specialist roles and are expected to provide a range of services.
In general, we found that services were insufficiently responsive to the diverse needs of prisoners with mental health problems.
6.5 Given these concerns and the high prevalence of mental health issues amongst prisoners, the Commission submits that clause 19A(3) should require that a Health Centre Manager is either a medical practitioner or registered nurse, with suitable psychiatric training.
6.6 In addition, the Ombudsmen’s report identified a number of other issues concerning the prison health service and the role of medical officers, including the availability and standard of performance of medical officers, and the need for greater alignment with public health services. With reference to SMR 22(1) the Ombudsmen stated that:
Health Services, in our view, cannot be considered to be organised in close
relationship with the “general health administration of the community
or nation” as stated in Article 22 (1) of the United Nations Minimum
Standard Rules for the Treatment of Prisoners.
6.7 The report recommended that:
the Department’s Health Service should be aligned with the wider health system. Health Services for prisoners should be funded and delivered by an agency whose primary focus is “health” and therapeutic support, not custodial services.
6.8 The Bill’s proposal to transfer responsibilities from medical officers (usually contracted general practitioners) to Health Centre Managers (part of the Prison Services) does not serve to align prison health services with the wider health system, but rather could create further separation and a more self-contained and insular prison health service.
6.9 Given concerns raised by the Ombudsmen about gaps in coverage, it is also imperative that the proposal to amend the requirements regarding the number of medical officers should not lead to a reduction in numbers. The Ombudsmen’s report notes:[30]
At one of the smaller prisons we visited, Health Services staff commented positively regarding their ease of contact with Medical Officers after hours, the care they afforded prisoners and the additional hours Medical Officers work in excess of those contracted.
This was not the case at all prisons we visited. At some sites, Health Services and custodial staff expressed concern about the limited hours and quality of the service provided by the Medical Officer at their prison.
The Department might consider periodic review of coverage and standards of performance by Medical officers.
6.10 The clause should be amended to define a “sufficient number” with reference to ratio to prisoner numbers and hours of availability. There should also be a requirement for regular review of coverage.
7. Exercise
7.1 Human rights standards require that at least one hour of exercise (in the open air, weather permitting) is available to all prisoners.[31] Such opportunity is the widely accepted minimum necessary to support the physical and mental health of prisoners.
7.2 The regulatory impact statement explains that the Bill’s proposed amendment is in response to the Ombudsmen’s determination that prisoners attending court should receive their entitlement to at least one hour of exercise.
7.3 The Commission is concerned that a substantial number of prisoners, may be deprived of the opportunity for fresh air and exercise by these provisions, possibly for days at a time.
7.4 While recognising the staffing issue raised by the Department of Corrections, the Commission considers that sufficient staffing should be made available to ensure that all prisoners are provided their minimum entitlements.
7.5 In addition, the Commission notes that the current section 69(3) of the Act enables prisoners held in police jails to be denied their entitlement to exercise “if, in the opinion of the prison manager or other person in charge, it is not practicable to provide those entitlements, having regard to the facilities available at the Police jail and the resources available”. The Commission considers that any denial should be based on an objective standard, rather than opinion.
8. Prisoner property
8.1 Prisoner property is consistently among the main issues of prisoner complaint to both the Inspector of Corrections and the Ombudsmen.[32] The Inspector of Corrections has, for a number of years, called for a “significant overhaul of the way the Department approaches and manages prisoner property”.[33]
8.2 In the Department’s 2011 annual report the Inspector of Corrections notes that “the management of prisoner’s personal property leaves room for improvement”, and also that a comprehensive review of prisoner property has been commenced.[34] We understand this review is well advanced.
8.3 Given these issues, the Commission supports measures to improve the efficient management of prisoner property. While we do not have major issues with the proposed amendment, we do not believe that this will address the longstanding problems with the management of prisoner property. We suggest that further attention is given to improving this issue and implementing the outcome of the current review.
8.4 The Commission also recommends that a minimum core set of items remain authorised under regulation. We suggest that the clause is amended to empower the chief executive to amend this minimum list only when it can be shown that it is necessary to prevent harm or uphold security.
9. Self-employment / Earnings
9.1 The right to work is a universal human right. Prisoners’ rights to work are affirmed in international human rights instruments, such as the Basic Principles for the Treatment of Prisoners and the UN Standard Minimum Rules.
9.2 Principle 8 of the Basic Principles for the Treatment of Prisoners requires that:
Conditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country's labour market and permit them to contribute to their own financial support and to that of their families.
9.3 The Standard Minimum Rules for the Treatment of Prisoners provide as follows:
71. (3) Sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day.
(4) So far as possible the work provided shall be such as will maintain or increase the prisoners' ability to earn an honest living after release.
9.4 In its 2010 review of Human Rights in New Zealand the Commission noted that:
There have been considerable efforts to increase access to employment and training opportunities, opening of new drug treatment units, and expansion of rehabilitation programmes. Despite these gains, there is still scope for further improvement and expansion, including by identifying and addressing potential barriers to access.
9.5 The Regulatory Impact Statement (paper 2) states that “opportunities for prisoners to gain self-employment skills are not being realised”. The Commission therefore supports the proposal to extend opportunities to prisoners who are self-employed.
10. Delegation of powers
10.1 UN treaty bodies have emphasised that however public services are delivered – for example, when they are delegated to private actors – the State has responsibility to ensure human rights are promoted, protected and fulfilled.
10.2 To ensure that human rights standards are maintained when state functions are devolved to private actors, the UN General Assembly adopted the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework (the Ruggie Principles).[35]
10.3 The Ruggie Principles are designed to ensure that companies do not violate human rights in the course of business transactions and provide redress when infringements occur. There are three parts to the Ruggie Principles. The first is the duty of the State to protect against abuse by third parties - which includes businesses - by adopting appropriate policies, regulations and adjudication. The second is the responsibility of business to respect human rights, to avoid infringing the rights of others and to address any adverse impacts, while the third is ensuring victims have greater access to an effective remedy.
10.4 While the Ruggie Principles are not legally binding in the same way as a treaty, they establish standards of behaviour with which States are expected to conform. States may be held to have breached their human rights obligations if they fail to take appropriate steps to prevent, investigate or punish abuse by private actors.
10.5 While the Corrections Act imposes duties on contractors to comply with “all relevant international obligations and standards” (s 199(2)(d)) the Commission considers that specific reference to the Ruggie Principles would provide important added protection along with the increased delegated powers.
10.6 The Commission also supports the reporting requirements of clauses 43 and 45 which will help to ensure that the Department retains some oversight of these delegated powers.
Appendix 1 – UN Standard Minimum Rules for the Treatment of PrisonersAppendix – 1
Adopted by the First United Nations Congress on the Prevention
of Crime and the Treatment of Offenders, held at Geneva in 1955, and
approved by
the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957
and 2076 (LXII) of 13 May 1977
PRELIMINARY OBSERVATIONS
1. The
following rules are not intended to describe in detail a model system of penal
institutions. They seek only, on the basis of
the general consensus of
contemporary thought and the essential elements of the most adequate systems of
today, to set out what is
generally accepted as being good principle and
practice in the treatment of prisoners and the management of institutions.
2. In view of the great variety of legal,
social, economic and geographical conditions of the world, it is evident that
not all of
the rules are capable of application in all places and at all times.
They should, however, serve to stimulate a constant endeavour
to overcome
practical difficulties in the way of their application, in the knowledge that
they represent, as a whole, the minimum
conditions which are accepted as
suitable by the United Nations.
3. On the other
hand, the rules cover a field in which thought is constantly developing. They
are not intended to preclude experiment
and practices, provided these are in
harmony with the principles and seek to further the purposes which derive from
the text of the
rules as a whole. It will always be justifiable for the central
prison administration to authorize departures from the rules in this
spirit.
4. (1) Part I of the rules covers the
general management of institutions, and is applicable to all categories of
prisoners, criminal
or civil, untried or convicted, including prisoners subject
to "security measures" or corrective measures ordered by the judge.
(2) Part II contains rules applicable only to
the special categories dealt with in each section. Nevertheless, the rules under
section
A, applicable to prisoners under sentence, shall be equally applicable
to categories of prisoners dealt with in sections B, C and
D, provided they do
not conflict with the rules governing those categories and are for their
benefit.
5. (1) The rules do not seek to
regulate the management of institutions set aside for young persons such as
Borstal institutions or
correctional schools, but in general part I would be
equally applicable in such institutions.
(2) The category of young prisoners should
include at least all young persons who come within the jurisdiction of juvenile
courts.
As a rule, such young persons should not be sentenced to imprisonment.
Part I
RULES OF GENERAL APPLICATION
Basic principle
6. (1) The
following rules shall be applied impartially. There shall be no discrimination
on grounds of race, colour, sex, language,
religion, political or other opinion,
national or social origin, property, birth or other status.
(2) On the other hand, it is necessary to
respect the religious beliefs and moral precepts of the group to which a
prisoner belongs.
Register
7. (1) In
every place where persons are imprisoned there shall be kept a bound
registration book with numbered pages in which shall
be entered in respect of
each prisoner received:
( a ) Information
concerning his identity;
( b ) The reasons for
his commitment and the authority therefor;
( c
) The day and hour of his admission and release.
(2) No person shall be received in an
institution without a valid commitment order of which the details shall have
been previously
entered in the register.
Separation of categories
8. The
different categories of prisoners shall be kept in separate institutions or
parts of institutions taking account of their sex,
age, criminal record, the
legal reason for their detention and the necessities of their treatment. Thus,
( a ) Men and women shall so far as possible be
detained in separate institutions; in an institution which receives both men and
women
the whole of the premises allocated to women shall be entirely separate;
( b ) Untried prisoners shall be kept separate
from convicted prisoners;
( c ) Persons
imprisoned for debt and other civil prisoners shall be kept separate from
persons imprisoned by reason of a criminal
offence;
( d ) Young prisoners shall be kept separate
from adults.
Accommodation
9. (1) Where
sleeping accommodation is in individual cells or rooms, each prisoner shall
occupy by night a cell or room by himself.
If for special reasons, such as
temporary overcrowding, it becomes necessary for the central prison
administration to make an exception
to this rule, it is not desirable to have
two prisoners in a cell or room.
(2) Where
dormitories are used, they shall be occupied by prisoners carefully selected as
being suitable to associate with one another
in those conditions. There shall be
regular supervision by night, in keeping with the nature of the institution.
10. All accommodation provided for the use of
prisoners and in particular all sleeping accommodation shall meet all
requirements of
health, due regard being paid to climatic conditions and
particularly to cubic content of air, minimum floor space, lighting, heating
and
ventilation.
11. In all places where prisoners
are required to live or work,
( a ) The windows
shall be large enough to enable the prisoners to read or work by natural light,
and shall be so constructed that
they can allow the entrance of fresh air
whether or not there is artificial ventilation;
( b
) Artificial light shall be provided sufficient for the prisoners to read
or work without injury to eyesight.
12. The
sanitary installations shall be adequate to enable every prisoner to comply with
the needs of nature when necessary and in
a clean and decent manner.
13. Adequate bathing and shower installations
shall be provided so that every prisoner may be enabled and required to have a
bath
or shower, at a temperature suitable to the climate, as frequently as
necessary for general hygiene according to season and geographical
region, but
at least once a week in a temperate climate.
14. All parts of an institution regularly used
by prisoners shall be properly maintained and kept scrupulously clean at all
times.
Personal hygiene
15. Prisoners
shall be required to keep their persons clean, and to this end they shall be
provided with water and with such toilet
articles as are necessary for health
and cleanliness.
16. In order that prisoners
may maintain a good appearance compatible with their self-respect, facilities
shall be provided for the
proper care of the hair and beard, and men shall be
enabled to shave regularly.
Clothing and bedding
17. (1) Every
prisoner who is not allowed to wear his own clothing shall be provided with an
outfit of clothing suitable for the climate
and adequate to keep him in good
health. Such clothing shall in no manner be degrading or humiliating.
(2) All clothing shall be clean and kept in
proper condition. Underclothing shall be changed and washed as often as
necessary for
the maintenance of hygiene.
(3) In exceptional circumstances, whenever a
prisoner is removed outside the institution for an authorized purpose, he shall
be allowed
to wear his own clothing or other inconspicuous clothing.
18. If prisoners are allowed to wear their own
clothing, arrangements shall be made on their admission to the institution to
ensure
that it shall be clean and fit for use.
19. Every prisoner shall, in accordance with
local or national standards, be provided with a separate bed, and with separate
and sufficient
bedding which shall be clean when issued, kept in good order and
changed often enough to ensure its cleanliness.
Food
20. (1) Every
prisoner shall be provided by the administration at the usual hours with food of
nutritional value adequate for health
and strength, of wholesome quality and
well prepared and served.
(2) Drinking water
shall be available to every prisoner whenever he needs it.
Exercise and sport
21. (1) Every
prisoner who is not employed in outdoor work shall have at least one hour of
suitable exercise in the open air daily
if the weather permits.
(2) Young prisoners, and others of suitable age
and physique, shall receive physical and recreational training during the period
of
exercise. To this end space, installations and equipment should be provided.
Medical services
22. (1) At
every institution there shall be available the services of at least one
qualified medical officer who should have some
knowledge of psychiatry. The
medical services should be organized in close relationship to the general health
administration of the
community or nation. They shall include a psychiatric
service for the diagnosis and, in proper cases, the treatment of states of
mental abnormality.
(2) Sick prisoners who
require specialist treatment shall be transferred to specialized institutions or
to civil hospitals. Where
hospital facilities are provided in an institution,
their equipment, furnishings and pharmaceutical supplies shall be proper for
the
medical care and treatment of sick prisoners, and there shall be a staff of
suitable trained officers.
(3) The services of
a qualified dental officer shall be available to every prisoner.
23. (1) In women's institutions there
shall be special accommodation for all necessary pre-natal and post-natal care
and treatment.
Arrangements shall be made wherever practicable for children to
be born in a hospital outside the institution. If a child is born
in prison,
this fact shall not be mentioned in the birth certificate.
(2) Where nursing infants are allowed to remain
in the institution with their mothers, provision shall be made for a nursery
staffed
by qualified persons, where the infants shall be placed when they are
not in the care of their mothers.
24. The
medical officer shall see and examine every prisoner as soon as possible after
his admission and thereafter as necessary,
with a view particularly to the
discovery of physical or mental illness and the taking of all necessary
measures; the segregation
of prisoners suspected of infectious or contagious
conditions; the noting of physical or mental defects which might hamper
rehabilitation,
and the determination of the physical capacity of every prisoner
for work.
25. (1) The medical officer
shall have the care of the physical and mental health of the prisoners and
should daily see all sick prisoners,
all who complain of illness, and any
prisoner to whom his attention is specially directed.
(2) The medical officer shall report to the
director whenever he considers that a prisoner's physical or mental health has
been or
will be injuriously affected by continued imprisonment or by any
condition of imprisonment.
26. (1) The
medical officer shall regularly inspect and advise the director upon:
( a ) The quantity, quality, preparation and
service of food;
( b ) The hygiene and
cleanliness of the institution and the prisoners;
(
c ) The sanitation, heating, lighting and ventilation of the institution;
( d ) The suitability and cleanliness of the
prisoners' clothing and bedding;
( e ) The
observance of the rules concerning physical education and sports, in cases where
there is no technical personnel in charge
of these activities.
(2) The director shall take into consideration
the reports and advice that the medical officer submits according to rules 25
(2) and
26 and, in case he concurs with the recommendations made, shall take
immediate steps to give effect to those recommendations; if
they are not within
his competence or if he does not concur with them, he shall immediately submit
his own report and the advice
of the medical officer to higher authority.
Discipline and punishment
27. Discipline
and order shall be maintained with firmness, but with no more restriction than
is necessary for safe custody and well-ordered
community life.
28. (1) No prisoner shall be employed, in
the service of the institution, in any disciplinary capacity.
(2) This rule shall not, however, impede the
proper functioning of systems based on self-government, under which specified
social,
educational or sports activities or responsibilities are entrusted,
under supervision, to prisoners who are formed into groups for
the purposes of
treatment.
29. The following shall always be
determined by the law or by the regulation of the competent administrative
authority:
( a ) Conduct constituting a
disciplinary offence;
( b ) The types and
duration of punishment which may be inflicted;
( c
) The authority competent to impose such punishment.
30. (1) No prisoner shall be punished
except in accordance with the terms of such law or regulation, and never twice
for the same
offence.
(2) No prisoner shall be
punished unless he has been informed of the offence alleged against him and
given a proper opportunity of
presenting his defence. The competent authority
shall conduct a thorough examination of the case.
(3) Where necessary and practicable the
prisoner shall be allowed to make his defence through an interpreter.
31. Corporal punishment, punishment by placing
in a dark cell, and all cruel, inhuman or degrading punishments shall be
completely
prohibited as punishments for disciplinary offences.
32. (1) 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.
(2) The same shall apply to any other
punishment that may be prejudicial to the physical or mental health of a
prisoner. In no case
may such punishment be contrary to or depart from the
principle stated in rule 31.
(3) The medical
officer shall visit daily prisoners undergoing such punishments and shall advise
the director if he considers the
termination or alteration of the punishment
necessary on grounds of physical or mental health.
Instruments of restraint
33. Instruments
of restraint, such as handcuffs, chains, irons and strait-jackets, shall never
be applied as a punishment. Furthermore,
chains or irons shall not be used as
restraints. Other instruments of restraint shall not be used except in the
following circumstances:
( a ) As a precaution
against escape during a transfer, provided that they shall be removed when the
prisoner appears before a judicial
or administrative authority;
( b ) On medical grounds by direction of the
medical officer;
( c ) By order of the
director, if other methods of control fail, in order to prevent a prisoner from
injuring himself or others or
from damaging property; in such instances the
director shall at once consult the medical officer and report to the higher
administrative
authority.
34. The patterns and
manner of use of instruments of restraint shall be decided by the central prison
administration. Such instruments
must not be applied for any longer time than is
strictly necessary.
Information to and complaints by prisoners
35. (1) Every
prisoner on admission shall be provided with written information about the
regulations governing the treatment of prisoners
of his category, the
disciplinary requirements of the institution, the authorized methods of seeking
information and making complaints,
and all such other matters as are necessary
to enable him to understand both his rights and his obligations and to adapt
himself
to the life of the institution.
(2) If
a prisoner is illiterate, the aforesaid information shall be conveyed to him
orally.
36. (1) Every prisoner shall have
the opportunity each week day of making requests or complaints to the director
of the institution
or the officer authorized to represent him.
(2) It shall be possible to make requests or
complaints to the inspector of prisons during his inspection. The prisoner shall
have
the opportunity to talk to the inspector or to any other inspecting officer
without the director or other members of the staff being
present.
(3) Every prisoner shall be allowed to make a
request or complaint, without censorship as to substance but in proper form, to
the
central prison administration, the judicial authority or other proper
authorities through approved channels.
(4) Unless it is evidently frivolous or
groundless, every request or complaint shall be promptly dealt with and replied
to without
undue delay.
Contact with the outside world
37. Prisoners
shall be allowed under necessary supervision to communicate with their family
and reputable friends at regular intervals,
both by correspondence and by
receiving visits.
38. (1) Prisoners who
are foreign nationals shall be allowed reasonable facilities to communicate with
the diplomatic and consular
representatives of the State to which they belong.
(2) Prisoners who are nationals of States
without diplomatic or consular representation in the country and refugees or
stateless persons
shall be allowed similar facilities to communicate with the
diplomatic representative of the State which takes charge of their interests
or
any national or international authority whose task it is to protect such
persons.
39. Prisoners shall be kept informed
regularly of the more important items of news by the reading of newspapers,
periodicals or special
institutional publications, by hearing wireless
transmissions, by lectures or by any similar means as authorized or controlled
by
the administration.
Books
40. Every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it.
Religion
41. (1) If
the institution contains a sufficient number of prisoners of the same religion,
a qualified representative of that religion
shall be appointed or approved. If
the number of prisoners justifies it and conditions permit, the arrangement
should be on a full-time
basis.
(2) A qualified
representative appointed or approved under paragraph (1) shall be allowed to
hold regular services and to pay pastoral
visits in private to prisoners of his
religion at proper times.
(3) Access to a
qualified representative of any religion shall not be refused to any prisoner.
On the other hand, if any prisoner
should object to a visit of any religious
representative, his attitude shall be fully respected.
42. So far as practicable, every prisoner shall
be allowed to satisfy the needs of his religious life by attending the services
provided
in the institution and having in his possession the books of religious
observance and instruction of his denomination.
Retention of prisoners' property
43. (1) All
money, valuables, clothing and other effects belonging to a prisoner which under
the regulations of the institution he
is not allowed to retain shall on his
admission to the institution be placed in safe custody. An inventory thereof
shall be signed
by the prisoner. Steps shall be taken to keep them in good
condition.
(2) On the release of the prisoner
all such articles and money shall be returned to him except in so far as he has
been authorized
to spend money or send any such property out of the institution,
or it has been found necessary on hygienic grounds to destroy any
article of
clothing. The prisoner shall sign a receipt for the articles and money returned
to him.
(3) Any money or effects received for a
prisoner from outside shall be treated in the same way.
(4) If a prisoner brings in any drugs or
medicine, the medical officer shall decide what use shall be made of them.
Notification of death, illness, transfer, etc.
44. (1) Upon
the death or serious illness of, or serious injury to a prisoner, or his removal
to an institution for the treatment
of mental affections, the director shall at
once inform the spouse, if the prisoner is married, or the nearest relative and
shall
in any event inform any other person previously designated by the
prisoner.
(2) A prisoner shall be informed at
once of the death or serious illness of any near relative. In case of the
critical illness of
a near relative, the prisoner should be authorized, whenever
circumstances allow, to go to his bedside either under escort or alone.
(3) Every prisoner shall have the right to
inform at once his family of his imprisonment or his transfer to another
institution.
Removal of prisoners
45. (1) When
the prisoners are being removed to or from an institution, they shall be exposed
to public view as little as possible,
and proper safeguards shall be adopted to
protect them from insult, curiosity and publicity in any form.
(2) The transport of prisoners in conveyances
with inadequate ventilation or light, or in any way which would subject them to
unnecessary
physical hardship, shall be prohibited.
(3) The transport of prisoners shall be carried
out at the expense of the administration and equal conditions shall obtain for
all
of them.
Institutional personnel
46. (1) The
prison administration shall provide for the careful selection of every grade of
the personnel, since it is on their integrity,
humanity, professional capacity
and personal suitability for the work that the proper administration of the
institutions depends.
(2) The prison
administration shall constantly seek to awaken and maintain in the minds both of
the personnel and of the public the
conviction that this work is a social
service of great importance, and to this end all appropriate means of informing
the public
should be used.
(3) To secure the
foregoing ends, personnel shall be appointed on a full-time basis as
professional prison officers and have civil
service status with security of
tenure subject only to good conduct, efficiency and physical fitness. Salaries
shall be adequate
to attract and retain suitable men and women; employment
benefits and conditions of service shall be favourable in view of the exacting
nature of the work.
47. (1) The personnel
shall possess an adequate standard of education and intelligence.
(2) Before entering on duty, the personnel
shall be given a course of training in their general and specific duties and be
required
to pass theoretical and practical tests.
(3) After entering on duty and during their
career, the personnel shall maintain and improve their knowledge and
professional capacity
by attending courses of in-service training to be
organized at suitable intervals.
48. All
members of the personnel shall at all times so conduct themselves and perform
their duties as to influence the prisoners for
good by their example and to
command their respect.
49. (1) So far as
possible, the personnel shall include a sufficient number of specialists such as
psychiatrists, psychologists, social
workers, teachers and trade instructors.
(2) The services of social workers, teachers
and trade instructors shall be secured on a permanent basis, without thereby
excluding
part-time or voluntary workers.
50. (1) The director of an institution
should be adequately qualified for his task by character, administrative
ability, suitable
training and experience.
(2) He shall devote his entire time to his
official duties and shall not be appointed on a part-time basis.
(3) He shall reside on the premises of the
institution or in its immediate vicinity.
(4) When
two or more institutions are under the authority of one director, he shall visit
each of them at frequent intervals. A responsible
resident official shall be in
charge of each of these institutions.
51. (1) The director, his deputy, and the
majority of the other personnel of the institution shall be able to speak the
language of
the greatest number of prisoners, or a language understood by the
greatest number of them.
(2) Whenever
necessary, the services of an interpreter shall be used.
52. (1) In institutions which are large
enough to require the services of one or more full-time medical officers, at
least one of
them shall reside on the premises of the institution or in its
immediate vicinity.
(2) In other institutions
the medical officer shall visit daily and shall reside near enough to be able to
attend without delay in
cases of urgency.
53. (1) In an institution for both men and
women, the part of the institution set aside for women shall be under the
authority of
a responsible woman officer who shall have the custody of the keys
of all that part of the institution.
(2) No
male member of the staff shall enter the part of the institution set aside for
women unless accompanied by a woman officer.
(3) Women prisoners shall be attended and
supervised only by women officers. This does not, however, preclude male members
of the
staff, particularly doctors and teachers, from carrying out their
professional duties in institutions or parts of institutions set
aside for
women.
54. (1) Officers of the
institutions shall not, in their relations with the prisoners, use force except
in self-defence or in cases
of attempted escape, or active or passive physical
resistance to an order based on law or regulations. Officers who have recourse
to force must use no more than is strictly necessary and must report the
incident immediately to the director of the institution.
(2) Prison officers shall be given special
physical training to enable them to restrain aggressive prisoners.
(3) Except in special circumstances, staff
performing duties which bring them into direct contact with prisoners should not
be armed.
Furthermore, staff should in no circumstances be provided with arms
unless they have been trained in their use.
Inspection
55. There shall be a regular inspection of penal institutions and services by qualified and experienced inspectors appointed by a competent authority. Their task shall be in particular 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.
Part II
RULES APPLICABLE TO SPECIAL CATEGORIES
A. Prisoners under sentence
Guiding principles
56. The
guiding principles hereafter are intended to show the spirit in which penal
institutions should be administered and the purposes
at which they should aim,
in accordance with the declaration made under Preliminary Observation 1 of the
present text.
57. Imprisonment and other
measures which result in cutting off an offender from the outside world are
afflictive by the very fact
of taking from the person the right of
self-determination by depriving him of his liberty. Therefore the prison system
shall not,
except as incidental to justifiable segregation or the maintenance of
discipline, aggravate the suffering inherent in such a situation.
58. The purpose and justification of a sentence
of imprisonment or a similar measure deprivative of liberty is ultimately to
protect
society against crime. This end can only be achieved if the period of
imprisonment is used to ensure, so far as possible, that upon
his return to
society the offender is not only willing but able to lead a law-abiding and
self-supporting life.
59. To this end, the
institution should utilize all the remedial, educational, moral, spiritual and
other forces and forms of assistance
which are appropriate and available, and
should seek to apply them according to the individual treatment needs of the
prisoners.
60. (1) The regime of the
institution should seek to minimize any differences between prison life and life
at liberty which tend to
lessen the responsibility of the prisoners or the
respect due to their dignity as human beings.
(2) Before the completion of the sentence, it
is desirable that the necessary steps be taken to ensure for the prisoner a
gradual
return to life in society. This aim may be achieved, depending on the
case, by a pre-release regime organized in the same institution
or in another
appropriate institution, or by release on trial under some kind of supervision
which must not be entrusted to the police
but should be combined with effective
social aid.
61. The treatment of prisoners
should emphasize not their exclusion from the community, but their continuing
part in it. Community
agencies should, therefore, be enlisted wherever possible
to assist the staff of the institution in the task of social rehabilitation
of
the prisoners. There should be in connection with every institution social
workers charged with the duty of maintaining and improving
all desirable
relations of a prisoner with his family and with valuable social agencies. Steps
should be taken to safeguard, to the
maximum extent compatible with the law and
the sentence, the rights relating to civil interests, social security rights and
other
social benefits of prisoners.
62. The
medical services of the institution shall seek to detect and shall treat any
physical or mental illnesses or defects which
may hamper a prisoner's
rehabilitation. All necessary medical, surgical and psychiatric services shall
be provided to that end.
63. (1) The
fulfilment of these principles requires individualization of treatment and for
this purpose a flexible system of classifying
prisoners in groups; it is
therefore desirable that such groups should be distributed in separate
institutions suitable for the treatment
of each group.
(2) These institutions need not provide the
same degree of security for every group. It is desirable to provide varying
degrees of
security according to the needs of different groups. Open
institutions, by the very fact that they provide no physical security against
escape but rely on the self-discipline of the inmates, provide the conditions
most favourable to rehabilitation for carefully selected
prisoners.
(3) It is desirable that the number of
prisoners in closed institutions should not be so large that the
individualization of treatment
is hindered. In some countries it is considered
that the population of such institutions should not exceed five hundred. In open
institutions the population should be as small as possible.
(4) On the other hand, it is undesirable to
maintain prisons which are so small that proper facilities cannot be provided.
64. The duty of society does not end with a
prisoner's release. There should, therefore, be governmental or private agencies
capable
of lending the released prisoner efficient after-care directed towards
the lessening of prejudice against him and towards his social
rehabilitation.
Treatment
65. The
treatment of persons sentenced to imprisonment or a similar measure shall have
as its purpose, so far as the length of the
sentence permits, to establish in
them the will to lead law-abiding and self-supporting lives after their release
and to fit them
to do so. The treatment shall be such as will encourage their
self-respect and develop their sense of responsibility.
66. (1) To these ends, all appropriate
means shall be used, including religious care in the countries where this is
possible, education,
vocational guidance and training, social casework,
employment counselling, physical development and strengthening of moral
character,
in accordance with the individual needs of each prisoner, taking
account of his social and criminal history, his physical and mental
capacities
and aptitudes, his personal temperament, the length of his sentence and his
prospects after release.
(2) For every prisoner
with a sentence of suitable length, the director shall receive, as soon as
possible after his admission, full
reports on all the matters referred to in the
foregoing paragraph. Such reports shall always include a report by a medical
officer,
wherever possible qualified in psychiatry, on the physical and mental
condition of the prisoner.
(3) The reports and
other relevant documents shall be placed in an individual file. This file shall
be kept up to date and classified
in such a way that it can be consulted by the
responsible personnel whenever the need arises.
Classification and individualization
67. The
purposes of classification shall be:
( a ) To
separate from others those prisoners who, by reason of their criminal records or
bad characters, are likely to exercise a
bad influence;
( b ) To divide the prisoners into classes in
order to facilitate their treatment with a view to their social rehabilitation.
68. So far as possible separate institutions or
separate sections of an institution shall be used for the treatment of the
different
classes of prisoners.
69. As soon as
possible after admission and after a study of the personality of each prisoner
with a sentence of suitable length,
a programme of treatment shall be prepared
for him in the light of the knowledge obtained about his individual needs, his
capacities
and dispositions.
Privileges
70. Systems of privileges appropriate for the different classes of prisoners and the different methods of treatment shall be established at every institution, in order to encourage good conduct, develop a sense of responsibility and secure the interest and co-operation of the prisoners in their treatment.
Work
71. (1) Prison
labour must not be of an afflictive nature.
(2) All prisoners under sentence shall be
required to work, subject to their physical and mental fitness as determined by
the medical
officer.
(3) Sufficient work of a
useful nature shall be provided to keep prisoners actively employed for a normal
working day.
(4) So far as possible the work
provided shall be such as will maintain or increase the prisoners, ability to
earn an honest living
after release.
(5) Vocational training in useful trades shall
be provided for prisoners able to profit thereby and especially for young
prisoners.
(6) Within the limits compatible
with proper vocational selection and with the requirements of institutional
administration and discipline,
the prisoners shall be able to choose the type of
work they wish to perform.
72. (1) The
organization and methods of work in the institutions shall resemble as closely
as possible those of similar work outside
institutions, so as to prepare
prisoners for the conditions of normal occupational life.
(2) The interests of the prisoners and of their
vocational training, however, must not be subordinated to the purpose of making
a
financial profit from an industry in the institution.
73. (1) Preferably institutional
industries and farms should be operated directly by the administration and not
by private contractors.
(2) Where prisoners are
employed in work not controlled by the administration, they shall always be
under the supervision of the institution's
personnel. Unless the work is for
other departments of the government the full normal wages for such work shall be
paid to the administration
by the persons to whom the labour is supplied,
account being taken of the output of the prisoners.
74. (1) The precautions laid down to
protect the safety and health of free workmen shall be equally observed in
institutions.
(2) Provision shall be made to
indemnify prisoners against industrial injury, including occupational disease,
on terms not less favourable
than those extended by law to free workmen.
75. (1) The maximum daily and weekly
working hours of the prisoners shall be fixed by law or by administrative
regulation, taking
into account local rules or custom in regard to the
employment of free workmen.
(2) The hours so
fixed shall leave one rest day a week and sufficient time for education and
other activities required as part of
the treatment and rehabilitation of the
prisoners.
76. (1) There shall be a system
of equitable remuneration of the work of prisoners.
(2) Under the system prisoners shall be allowed
to spend at least a part of their earnings on approved articles for their own
use
and to send a part of their earnings to their family.
(3) The system should also provide that a part
of the earnings should be set aside by the administration so as to constitute a
savings
fund to be handed over to the prisoner on his release.
Education and recreation
77. (1) Provision
shall be made for the further education of all prisoners capable of profiting
thereby, including religious instruction
in the countries where this is
possible. The education of illiterates and young prisoners shall be compulsory
and special attention
shall be paid to it by the administration.
(2) So far as practicable, the education of
prisoners shall be integrated with the educational system of the country so that
after
their release they may continue their education without difficulty.
78. Recreational and cultural activities shall
be provided in all institutions for the benefit of the mental and physical
health of
prisoners.
Social relations and after-care
79. Special
attention shall be paid to the maintenance and improvement of such relations
between a prisoner and his family as are
desirable in the best interests of
both.
80. From the beginning of a prisoner's
sentence consideration shall be given to his future after release and he shall
be encouraged
and assisted to maintain or establish such relations with persons
or agencies outside the institution as may promote the best interests
of his
family and his own social rehabilitation.
81. (1) Services and agencies,
governmental or otherwise, which assist released prisoners to re-establish
themselves in society shall
ensure, so far as is possible and necessary, that
released prisoners be provided with appropriate documents and identification
papers,
have suitable s and work to go to, are suitably and adequately clothed
having regard to the climate and season, and have sufficient
means to reach
their destination and maintain themselves in the period immediately following
their release.
(2) The approved representatives
of such agencies shall have all necessary access to the institution and to
prisoners and shall be
taken into consultation as to the future of a prisoner
from the beginning of his sentence.
(3) It is
desirable that the activities of such agencies shall be centralized or
co-ordinated as far as possible in order to secure
the best use of their
efforts.
B. Insane and mentally abnormal prisoners
82. (1) Persons
who are found to be insane shall not be detained in prisons and arrangements
shall be made to remove them to mental
institutions as soon as possible.
(2) Prisoners who suffer from other mental
diseases or abnormalities shall be observed and treated in specialized
institutions under
medical management.
(3) During their stay in a prison, such
prisoners shall be placed under the special supervision of a medical officer.
(4) The medical or psychiatric service of the
penal institutions shall provide for the psychiatric treatment of all other
prisoners
who are in need of such treatment.
83. It is desirable that steps should be taken,
by arrangement with the appropriate agencies, to ensure if necessary the
continuation
of psychiatric treatment after release and the provision of
social-psychiatric after-care.
C. Prisoners under arrest or awaiting trial
84. (1) Persons
arrested or imprisoned by reason of a criminal charge against them, who are
detained either in police custody or in
prison custody (jail) but have not yet
been tried and sentenced, will be referred to as "untried prisoners" hereinafter
in these
rules.
(2) Unconvicted prisoners are
presumed to be innocent and shall be treated as such.
(3) Without prejudice to legal rules for the
protection of individual liberty or prescribing the procedure to be observed in
respect
of untried prisoners, these prisoners shall benefit by a special regime
which is described in the following rules in its essential
requirements only.
85. (1) Untried prisoners shall be kept
separate from convicted prisoners.
(2) Young
untried prisoners shall be kept separate from adults and shall in principle be
detained in separate institutions.
86. Untried
prisoners shall sleep singly in separate rooms, with the reservation of
different local custom in respect of the climate.
87. Within the limits compatible with the good
order of the institution, untried prisoners may, if they so desire, have their
food
procured at their own expense from the outside, either through the
administration or through their family or friends. Otherwise,
the administration
shall provide their food.
88. (1) An
untried prisoner shall be allowed to wear his own clothing if it is clean and
suitable.
(2) If he wears prison dress, it
shall be different from that supplied to convicted prisoners.
89. An untried prisoner shall always be offered
opportunity to work, but shall not be required to work. If he chooses to work,
he
shall be paid for it.
90. An untried
prisoner shall be allowed to procure at his own expense or at the expense of a
third party such books, newspapers,
writing materials and other means of
occupation as are compatible with the interests of the administration of justice
and the security
and good order of the institution.
91. An untried prisoner shall be allowed to be
visited and treated by his own doctor or dentist if there is reasonable ground
for
his application and he is able to pay any expenses incurred.
92. An untried prisoner shall be allowed to
inform immediately his family of his detention and shall be given all reasonable
facilities
for communicating with his family and friends, and for receiving
visits from them, subject only to restrictions and supervision as
are necessary
in the interests of the administration of justice and of the security and good
order of the institution.
93. For the purposes
of his defence, an untried prisoner shall be allowed to apply for free legal aid
where such aid is available,
and to receive visits from his legal adviser with a
view to his defence and to prepare and hand to him confidential instructions.
For these purposes, he shall if he so desires be supplied with writing material.
Interviews between the prisoner and his legal adviser
may be within sight but
not within the hearing of a police or institution official.
D. Civil prisoners
94. In countries where the law permits imprisonment for debt, or by order of a court under any other non-criminal process, persons so imprisoned shall not be subjected to any greater restriction or severity than is necessary to ensure safe custody and good order. Their treatment shall be not less favourable than that of untried prisoners, with the reservation, however, that they may possibly be required to work.
E. Persons arrested or detained without charge
95. Without
prejudice to the provisions of article 9 of the International Covenant on Civil
and Political Rights, persons arrested
or imprisoned without charge shall be
accorded the same protection as that accorded under part I and part II, section
C. Relevant
provisions of part II, section A, shall likewise be applicable where
their application may be conducive to the benefit of this special
group of
persons in custody, provided that no measures shall be taken implying that
re-education or rehabilitation is in any way
appropriate to persons not
convicted of any criminal offence.
Appendix 2 –Commentary regarding the use of restraints
Human rights standards require that instruments
of restraint are only used legitimately, for no longer than strictly necessary,
and
never as a punishment.
The European Committee on Prevention of
Torture has recently issued further guidance in the form of the following
principles and minimum
standards:[36]
Further, the person concerned should be given the opportunity to discuss his/her experience, during and, in any event, as soon as possible after the end of a period of restraint. This discussion should always involve a senior member of the health care staff or another senior member of staff with appropriate training.
[1] OPCAT, Article
19(b).
[2] International human
rights instruments are accessible online at the website of the Office of the
High Commissioner for Human Rights,
see: http://www.unhchr.ch/.
[3] ICCPR, Article 10(1); CAT,
Article 16(1); UNCROC, Article
37(c).
[4] UDHR, Article 5; ICCPR,
Article 7; CAT, Article 16(1); UNCROC, Article 37(a); CRPD, Article
15.
[5] Non binding instruments
include:
These documents are accessible online at http://www2.ohchr.org/english/law/index.htm#core
[6]
The SMR are attached in full as Appendix
1.
[7] Human Rights Commission,
(2010), available online at: http://www.hrc.co.nz/human-rights-environment/human-rights-in-new-zealand-2010.
[8] Human Rights Commission,
(2004), Human Rights in New Zealand Today, Wellington: HRC, p
51.
[9] 10 UN Committee
Against Torture (2009), Concluding Observations of the Committee against
Torture: New Zealand, (42nd Session: CAT/C/NZL/CO/5). Human
Rights Committee (2010), Concluding observations of the Human Rights
Committee: New Zealand, (98th Session:
CCPR/C/NZL/CO/5).
[11] Taunoa
v Attorney-General [2007] NZSC 70, per McGrath J, at para
349.
[12] Brooker v The
Police [2007] NZSC 30, per Thomas J, at para
177.
[13] S5, Corrections Act
2004
[14] Stanley, E., (2011),
Human Rights and Prisons, Auckland: HRC. Available online at: http://www.hrc.co.nz/2011/human-rights-values-key-to-prisoner-rehabilitation.
[15]
Anti-discrimination Commission Queensland, (2006), Women in Prison: a report
by the Anti-Discrimination Commission Queensland. Available online at: http://www.adcq.qld.gov.au/Project-WIP/WIPreport_contents.htm.
[16] Stanley, E., supra note 13,
at p 90.
[17] For example, see:
European Committee for the Prevention of Torture, Report to the
Government of the Slovak Republic on the visit to the Slovak Republic
carried out by the European Committee for the Prevention of
Torture and Inhuman
or Degrading Treatment or Punishment (CPT) from 24 March to 2 April 2009,
CPT/Inf, (2010).
Report to the Government of the United Kingdom on the
visit to the United Kingdom carried out by the European Committee for the
Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT)
from 18 November to 1 December 2008, CPT/Inf
(2009).
[18] Ibid., (2009), at
para 106.
[19] The CPT is the
forerunner to, and the regional equivalent of, the UN Subcommittee for
Prevention of Torture. Through ratification
of OPCAT New Zealand is subject to
regular visits by the SPT.
[20]
CPT, Report to the United Nations Interim Administration Mission in Kosovo
(UNMIK) on the visit to
Kosovo ...from 8 to 15 June 20102010, Kosovo, CPT/Inf
(2011) 26, para 29.
[21]
Commentary is attached as Appendix
2.
[22] European Committee for
the Prevention of Torture (2008), Report to the Government of Denmark on the
visit to Denmark carried out by the European Committee for the Prevention of
Torture and
Inhuman or Degrading Treatment or Punishment (CPT) from 11 to 20
February 2008, CPT/Inf
(2008).
[23] Principle 5, UN
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.
Available online at: http://www2.ohchr.org/english/law/medicalethics.htm
[24]
Human Rights Commission, (2011), Monitoring Places of Detention: OPCAT
Annual Report 2009-2010,
p24.
[25] UN Committee Against
Torture (2009), Concluding Observations of the Committee against Torture: New
Zealand, (42nd Session: CAT/C/NZL/CO/5), para
9.
[26] SMR
20(2).
[27] See Appendix
1
[28] Wakem, B., McGee, D.,
(2012), Investigation of the Department of Corrections in relation to the
Provision, Access and Availability of Prisoner Health Services, Wellington:
Office of the Ombudsmen. Available online at: http://www.ombudsmen.parliament.nz/imagelibrary/100468.pdf
[29] Ibid.,
p110.
[30] Ibid.,
p75.
[31] SMR
21.
[32] Office of the Ombudsmen,
(2011), Report of the Ombudsmen for the year ended 30 June 2011, p 123.
Department of Corrections, (2011) Annual Report 2010-11, p97.
[33] Department of Corrections,
(2009) Annual Report 2008-9, p
139.
[34] Department of
Corrections (2011), supra note
31.
[35] Report of the Special
Representative of the Secretary-General on the issue of human rights and
transnational corporations and other
business enterprises, John Ruggie: The
Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework,
A/HRC/17/31.
[36] European
Committee for the Prevention of Torture (2008), Report to the Government of
Denmark on the visit to Denmark carried out by the European Committee for the
Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT)
from 11 to 20 February 2008, CPT/Inf (2008).
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