Introduction
When the world started its global fight against the novel Coronavirus, Covid-19, immediate measures were the need of the hour. The spread of the virus was rampant. The first case of Covid-19 was reported in Wuhan, China during the month of December, 2019. Initially, China declared it to be a case of unusual pneumonia and reported the same to the World Health Organization (WHO). However, it slowly grew into an unprecedented pandemic causing havoc and taking thousands of lives. A public health emergency was declared throughout the world by the WHO and almost all countries issued various measures to tackle covid-19 in their own boundaries.
The last two months witnessed various measures taken by nations across the globe to curb the spread of this virus. The majority of them declared nationwide lockdown to hinder the spread of Covid-19 and in the meantime began to procure and deliver essentials to everyone. Curfews were enforced in many places and the United Nations (UN) through its Secretary General called for a global ceasefire. At the same time, one of the most remarkable declarations in the history of human rights and prison rights was announced. Various countries across the globe announced that they will release prisoners in order to decongest their prisons. It was suggested by experts that there is more possibility of virus spreading in places like prison as the prisoners are kept in close quarters and are in direct contact with all the working staff too. This is in complete defiance of the ‘social distancing’ which is expected to be followed to flatten the curve of patients with Covid-19.
The Conundrum of Who Should be Released?
UN High Commissioner for Human Rights, Michelle Bachelet explained that prisons consist of a vulnerable population who should be protected at all costs. She added that, people convicted of low-risk offences, elderly people and people with medical ailments are more vulnerable to be infected by the virus and hence their release should be treated as a priority. In Burkina Faso, President Roch Marc Christian Kabore pardoned more than 1200 prisoners to decongest prisons. According to a statement released, the freed prisoners were selected on the basis of their age, health condition and the period of sentence that they have already completed. In India, after the Supreme Court advised states to decongest the prison to hinder the rampant spread of Covid-19, high powered committees were set up to decide how this process will be implemented and they issued proper guidelines which provided detailed information about the category of prisoners that should be prioritized to be pardoned. The majority of these countries put a proper framework in place to decongest their prisons accordingly. They have prepared their framework prioritizing the release of vulnerable populations and have adhered to the prisoners’ rights.
The Problem of Arbitrary Drafts and Frameworks
The UN Secretary General, Antonio Guterres, highlighted that the virus and diseases in general don’t discriminate on any grounds, as such, the provision of immediate services and benefits should not discriminate. He exclaimed that, “The best response is one that responds proportionately to immediate threats while protecting human rights and the rule of law.”
However, this pattern has not been followed everywhere. According to various news reports and journals, many countries are using this as an opportunity to ‘settle their scores’ with political prisoners and those who are detained for speaking or protesting against the state. UN High Commissioner for Human Rights, Michele Bachelet’s spokesperson mentioned that prisoners who are detained without sufficient legal basis, including political prisoners and those detained for critical and dissenting views should be included in the category of prisoners to be released. He further mentioned that many countries are however not following this. He claimed that Iran has released more than 100,000 inmates but no political prisoners. A political prisoner is loosely defined as a person who is detained owing to his or her political views, specifically against the government of their countries. According to Human Rights Watch, a few prisoners reportedly tested positive for the Coronavirus however they were not considered among those who were released, solely for the reason that they were detained for anti-government actions. News reports claim that they include political prisoners, but the government is not considering their release owing to its authoritarian approach.
In the North African country of Algeria, according to Reporters Without Borders, the government has been releasing various prisoners but none of them include those who are detained for affiliation with the anti-government Hirak Movement. Heba Morayef, Amnesty International’s regional head proclaimed that, “At a time when the Covid-19 pandemic has governments worldwide considering early prisoner releases, the Algerian authorities must immediately release all those imprisoned solely for the peaceful exercise of their rights.” Similar patterns can be traced in various regions across the globe. It is disheartening that in the time of this pandemic, states are violating human rights and the rights of the prisoners detained. According to WHO and various other international statutes, people suffering from medical ailments have a right to access to health benefits and services. According to Office of the High Commissioner of Human Rights (OHCHR), there have been deaths in prison facilities in Syria owing to the denial of medical care. Turkey is one of the most curious cases in this regard. In 2016, an attempted coup was staged against the state and failed. From then on, the state has afforded terrorist status to all who voice opposition against the state. When the Turkish Government prepared its first draft of categories of prisoners to be released, they allowed even people convicted for heinous offences like murder to be pardoned but not terrorists. The terrorists in this context majorly comprise of academics, journalists and people who were merely associated with banned anti-establishment groups. It is indeed true that some of them have actually committed violent acts and are perpetrators of crimes. However, the majority of them aren’t and were still left out of the draft. After criticism against the draft, the government removed prisoners who were convicted for murder, rape etc. but still intentionally left these academics and journalists off the list.
The problem of lack of sanitation and lack of access to medical care cannot be neglected. Many prisoners have either been reported as positive cases of Covid-19 or are suspected of having Covid-19, but these patients and potential patients are still not being provided with adequate access to medical care. This is in direct violation of the WHO guidelines which mandate prison authorities to take measures for ensuing health of the prisoners. Additionally, they should provide all prisoners, access to medical care and sufficient sanitation.
While the whole idea behind decongesting prisons was to ensure that social distancing is followed there, a new problem is on the rise. In many countries, state governments have detained large numbers of people who have violated the curfew and lockdown orders. In Sri Lanka, 34,500 people were detained on violations of curfew and lockdown orders. In Myanmar, the figure is around 1200. This mitigates the efforts of decongesting as the prisons are again being filled to their maximum capacities thus making them vulnerable to the spread of Covid-19.
Conclusion
The initiatives of countries across globe to decongest prisons to stop the spread of Coronavirus clearly illustrate that ‘desperate times require desperate measures.’ Decongestion is historic and remarkable; however, the same should not act as a tool for state governments to exploit certain group of prisoners. The instances of Iran, Algeria and Turkey elucidate how the method of various states to decongest prisons is in direct contravention of various international statutes. Moreover, it violates basics human rights by denying benefits to those who are in dire need of it. According to the Nelson Mandela Rules, The United Nations Standard Minimum Rules for the Treatment of Prisoners, access to health and medical care is paramount and the same cannot be denied on any grounds. The arbitrary pardoning of prisoners, leaving vulnerable and low risk offenders in the prisons violates the right to life as provided in Article 10 of the Universal Declaration of Human Rights.
The UN should take a stronger stand on this and should mandate all the states to prioritize the release of pending trial detainees, prisoners with medical conditions and low risk offenders. Additionally, those who are convicted of heinous offences, but are suffering from medical ailments should be provided with access to proper medical care. If any prisoner is reported to be Coronavirus positive, he or she should be provided with the requisite medical help and should be quarantined accordingly thus ensuring the welfare of the reported prisoner and the other inmates as well. Furthermore, governments, instead of instituting repressive measures unconnected to the pandemic, should be transparent, receptive and accountable in order to ensure that the basic rights of prisoners are not being waived.
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Deeksha Pokhriyal is pursuing a B.A.,LL.B. (Hons.) at NALSAR University of Law, Hyderabad. Her area of interest lies in the fields of constitutional law and law of contracts.
Aviral Agrawal is pursuing a B.A.,LL.B. (Hons.) at NALSAR University of Law, Hyderabad. He posses keen interest in the fields of public policy and research.
Suggested citation: Deeksha Pokhriyal and Aviral Agrawal, Decongesting Prisons and the Violation of Human Rights, JURIST – Student Commentary, May 9, 2020, https://www.jurist.org/commentary/2020/05/pokhriyal-agrawal-decongesting-prisons/
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
