Sourcebook on Solitary Confinement

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The complete document (Copyright © Sharon Shalev 2008) can be downloaded as pdf-file at http://solitaryconfinement.org/home

Table of Contents

1 Introduction
1.1 What is the Sourcebook about?
1.2 How is the Sourcebook structured?
1.3 Definition: what constitutes solitary confinement?
1.4 Brief historic context
1.5 Legal and regulatory framework
2 The health effects of solitary confinement
2.1 Introduction
2.2 The health effects of solitary confinement: a brief review of the literature and prisoners’ accounts
2.3 The negative health effects of solitary confinement: reported symptoms
2.4 What makes solitary confinement harmful?
2.5 The duration of solitary confinement
2.6 Sequelae of isolation: the lasting effects of solitary confinement
2.7 Concluding remarks about the effects of solitary confinement
3 The decision to place prisoners and detainees in solitary confinement
3.1 When and why are prisoners and detainees placed in solitary confinement?
3.2 Placement in solitary confinement: procedural safeguards, and special provisions and recommendations regarding the isolation of specific categories of prisoners
3.3 The human rights position and case law regarding the placement of prisoners in solitary confinement
4 Design, physical conditions and regime in solitary confinement units
4.1 Introduction
4.2 International standards regarding prison conditions and regime
4.3 Research findings and recommendations regarding prison design and environmental factors
4.4 Human rights case law regarding regime and physical conditions in segregation units
4.5 Concluding remarks on regime and conditions of confinement in segregation and high security units
5 The role of health professionals in segregation units: ethical, human rights and professional guidelines
5.1 Introduction: ethics as applied to prison medicine
5.2 Issues regarding prison medicine in solitary confinement units
5.3 Case law regarding the provision of medical care in prison
6 Monitoring and inspecting solitary confinement units
7 Summary of recommendations

Only excerpts from the highlighted chapters will be presented.

Human rights instruments and bodies

International human rights law includes both instruments designed for the universal protection of all human beings, and those designed specifically for the protection of prisoners and detainees. The basic premise of these instruments is that, other than limitations inherent in the deprivation of liberty, prisoners retain their human rights whilst incarcerated. These rights include, for example, the right to a free and fair trial; the right to freedom of thought, conscience and religion; the right to a private and family life; the right to adequate food, shelter and clothing; the right to health; and, the right to education...

The International Covenant on Civil and Political rights (ICCPR)

The ICCPR came into force in 1976. Its provisions are interpreted and its implementation monitored by the UN Human Rights Committee (HRC). Under Article 40 of the ICCPR, all State parties to it are required to submit a report on their compliance with the ICCPR initially upon ratification, and periodically thereafter. In addition, under the Covenant’s Optional Protocol, the Human Rights Committee may consider individual communications from nationals of signatory states to the Protocol.

Two articles of the ICCPR relate directly to the treatment of prisoners and prison conditions, including solitary confinement. Article 7 of the ICCPR proclaims that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment... ”.

The Human Rights Committee has interpreted Article 7 to mean[1]:

[2] The aim of the provisions of Article 7 is to protect both the dignity and the physical and mental integrity of the individual... [3] The text allows no limitation, even in time of public emergency...no justification or extenuating circumstances may be invoked to excuse a violation of Article 7 for any reason. [4] [The Committee] does not consider it necessary to draw up a list of prohibited acts, or to establish sharp distinction between the different kinds of punishment or treatment; the distinction depends on the nature, purpose and severity of the treatment applied.

The terms cruel, inhuman or degrading treatment or punishment, “should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time” (Note to Principle 6, Body of Principles). This interpretation would apply to some uses of solitary confinement, for example in dark, windowless or soundproofed cells. In such cases, solitary confinement may amount to inhuman or degrading treatment and sometimes even to torture[2].

Article 7 is closely linked to Article 10 of the ICCPR, which proclaims that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person … the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. Solitary confinement, by definition, deprives the individual from human contact and social interaction, and therefore clearly runs contrary to this principle. Together, articles 7 and 10 of the ICCPR set out a blanket protection of detainees from any form of ill-treatment. The Human Rights Committee stipulated that:

Article 10(1) imposes on state parties a positive obligation ... thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to Article 7...but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as that of free persons. Persons deprived of their liberty enjoy all the rights set forth, subject to the restrictions that are unavoidable in a closed environment. [4] treating all persons deprived of their liberty with humanity and respect for their dignity is a fundamental and universally applicable rule... this rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political opinion, national or social origin, property, birth or other status…[3]10.

The UN Convention Against Torture

and other Cruel, Inhuman or Degrading Treatment or Punishment

The Convention Against Torture was adopted by the UN General Assembly in 1984 and came into force in 1987. Article 1 of the Convention stipulates that:

For the purpose of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person....

The implementation of the Convention by State parties is monitored by a body of independent experts, the Committee Against Torture (CAT). All State parties to the Convention are required to submit a report within a year of ratification, and periodically thereafter. The Committee considers these reports and publishes its findings. In 2006 the Optional Protocol to the CAT (OPCAT) came into force with the aim of preventing torture and other ill-treatment through a system of regular inspection visits to all places of deprivation of liberty. The OPCAT establishes both an international inspection body (the Sub-Committee for the Prevention of Torture) and a permanent national inspecting body (known as the National Preventative Mechanism).

UN Standard Minimum Rules for the Treatment of Prisoners (SMR)

The SMR were adopted by the UN Economic and Social Council in 1957[4], and set out principles and guidelines as to “what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions” (SMR preamble). The SMR list a very specific set of guidelines for the treatment of offenders, ranging from basic food, shelter and exercise requirements to guidelines on prisoner classification and the provision of educational and vocational training.

The SMR also clearly set out general principles, including Rule 60 which reaffirms that prisoners are entitled to respect due to their dignity as human beings, Rules 64 & 65 which reaffirm that prisoners should be imprisoned as punishment, not for punishment, and Rule 27 which affirms that prisons should operate with “no more restriction than is necessary for safe custody and well ordered community life”. Rule 31 addresses solitary confinement directly in prohibiting placement in a dark cell and all cruel, inhuman or degrading punishments for disciplinary offences.

Although the SMR are not strictly legally binding on States, they set out minimum standards and recommendations for the operation of prisons which are now widely accepted as the main universal guidance for the treatment of prisoners. This is evidenced by the fact that in some countries they have been enacted into law or form the basis for national prison regulations.

The UN Special Rapporteur on Torture

An independent expert appointed by the UN Commission on Human Rights (now replaced by the Human Rights Council), who is mandated to report on the situation of torture anywhere in the world, regardless of whether or not the country is a signatory of the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Successive Rapporteurs have addressed the use of various forms of solitary confinement around the world, and have identified situations where its use constitutes cruel, inhuman or degrading treatment or punishment and sometimes even torture.

Regional human rights instruments and bodies[5]

European Convention on Human Rights (ECHR)

The European Convention on Human Rights was adopted by the Council of Europe in Rome in 1950 and came into force in 1953. The European Court of Human Rights (ECtHR) monitors compliance with the Convention by Member States.

The ECHR proclaims in its Article 3 that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” The prohibition of torture and ill treatment is absolute. States cannot derogate from it in times of war or other public emergency, and it is expressed in unqualified terms. The threshold which ill treatment has to attain in order to fall within the scope of Article 3 of the ECHR is a relative one; “It depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim”[6]. Inhuman treatment “covers at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable”[7]. Prison conditions, and therefore the use of solitary confinement, may also fall within the scope of Article 3. When assessing any one case the Court will take account of the cumulative effects of those conditions, as well as the specific allegations made by the applicant[8].

The European Prison Rules (EPR)

The EPR[9] contain 108 Rules, affirming that prisoners retain their human rights and setting detailed standards to guide the administration of prisons, prison conditions, the provision of health care in prisons, prison discipline, and the conduct of prison management and staff. Like the UN SMR, the EPR are not legally binding but they do set out minimum standards below which prison conditions must not fall.

The Committee for the Prevention of Torture (CPT)

The European Committee for the Prevention of Torture was created under Article 2 of the European Convention for the prevention of torture and inhuman or degrading treatment or punishment (1987), with a view to providing a non-judicial machinery of a preventive character and strengthening the protection of prisoners and detainees from torture or degrading treatment prohibited by Article 3 of the ECHR, through a system of visits. The CPT may visit any place where people are deprived of liberty within the jurisdiction of State parties. Through developing a set of standards which it applies when carrying-out visits to places of detention, the CPT also plays an important standard-setting role.

The negative health effects of solitary confinement

reported symptoms

Physiological effects

Although psychological effects are most common and usually dominant, physiological effects are nevertheless commonly reported. Some of these may be physical manifestations of psychological stress, but the lack of access to fresh air and sunlight and long periods of inactivity are likely also to have physical consequences. Grassian and Friedman (1986) list gastro-intestinal, cardiovascular and genito-urinary problems, migraine headaches and profound fatigue. Other signs and symptoms recorded by the some of the studies reviewed above are

  • Heart palpitations (awareness of strong and/or rapid heartbeat while at rest)
  • Diaphoresis (sudden excessive sweating)
  • Insomnia
  • Back and other joint pains
  • Deterioration of eyesight
  • Poor appetite, weight loss and sometimes diarrhoea
  • Lethargy, weakness
  • Tremulousness (shaking)
  • Feeling cold
  • Aggravation of pre-existing medical problems.

Psychological effects

The most widely reported effects of solitary confinement are its psychological effects26. These will vary with the pre-morbid adjustment of the individual and the context, length and conditions of confinement. The experience of previous trauma will render the individual more vulnerable, as will the involuntary nature of confinement as punishment, and confinement that persists over a sustained period of time. Initial acute reactions may be followed by more chronic symptoms if the confinement persists. While the majority of those held in solitary confinement will report some form of disturbance, there may be a small number of prisoners who show few signs and symptoms and may be more resilient to the negative effects of solitary confinement. Symptoms occur in the following areas and range from acute to chronic.

Anxiety, ranging from feelings of tension to full blown panic attacks

  • Persistent low level of stress
  • Irritability or anxiousness
  • Fear of impending death
  • Panic attacks

Depression, varying from low mood to clinical depression

  • Emotional flatness/blunting – loss of ability to have any ‘feelings’
  • Emotional lability (mood swings)
  • Hopelessness
  • Social withdrawal; loss of initiation of activity or ideas; apathy; lethargy
  • Major depression

Anger, ranging from irritability to full blown rage

  • Irritability and hostility,
  • Poor impulse control
  • Outbursts of physical and verbal violence against others, self and objects
  • Unprovoked anger, sometimes manifesting as rage

Cognitive disturbances, ranging from lack of concentration to confusional states

  • Short attention span
  • Poor concentration
  • Poor memory
  • Confused thought processes; disorientation.

Perceptual distortions, ranging from hypersensitivity to hallucinations

  • Hypersensitivity to noises and smells
  • Distortions of sensation (e.g. walls closing in)
  • Disorientation in time and space
  • Depersonalisation/derealisation
  • Hallucinations affecting all five senses, visual, auditory, tactile, olfactory and gustatory (e.g.

hallucinations of objects or people appearing in the cell, or hearing voices when no-one is actually speaking).

Paranoia and Psychosis, ranging from obsessional thoughts to full blown psychosis

  • Recurrent and persistent thoughts (ruminations) often of a violent and vengeful character (e.g.

directed against prison staff)

  • Paranoid ideas – often persecutory
  • Psychotic episodes or states: psychotic depression, schizophrenia.

Key points

  • There is unequivocal evidence, dating back to the 19th century, demonstrating the negative health effects of solitary confinement.
  • The extent of psychological and physiological damage of solitary confinement will depend on the individual prisoner, his background, the context of placement in isolation, its duration, conditions of confinement and degree of mitigation.
  • Uncertainty about the expected duration of solitary confinement is likely to increase its adverse effects.
  • While some of the health effects of solitary confinement will subside upon its termination, others may persist.
  • For these reasons, the use of solitary confinement should be reserved for extreme cases, for as short time as possible, but usually no more than a matter of days.
  • The misuse of the psychological and physiological effects of solitary confinement as part of an interrogation process may amount to cruel, inhuman or degrading treatment or punishment and even to torture, and should be prohibited in all circumstances.

Case Law on Solitary Confinement

The potentially harmful effects of solitary confinement are recognised by human rights bodies, who view it as an undesirable prison practice which can only be justified in extreme cases[10], must only be used for the shortest time possible[11], and which, in certain circumstances, may be in violation of international law.

The Human Rights Committee has expressed the view that “solitary confinement is a harsh penalty with serious psychological consequences and is justifiable only in case of urgent need; the use of solitary confinement other than in exceptional circumstances and for limited periods is inconsistent with article 10, paragraph 1, of the Covenant”[12] and may amount to acts prohibited by Article 7 (torture and cruel, inhuman or degrading treatment or punishment)[13]. The UN Committee Against Torture (CAT) has been critical of practices involving prolonged solitary confinement and has stated that these may amount to treatment in violation of the prohibition against torture or inhuman treatment. For example, the CAT has expressed grave concerns regarding the strict and prolonged solitary confinement in supermax prisons in the United States (CAT, 2000); lack of time limits on placement in solitary confinement and the number of detainees isolated for more than ten years in Japan (CAT, 2007); and, the isolation of pre-trial detainees in Denmark and Norway (CAT, 2002).

A joint report issued by UN Rapporteurs on the situation of detainees held by US forces at Guantanamo Bay stated that “the general conditions of detention, in particular the uncertainty about the length of detention and prolonged solitary confinement, amount to inhuman treatment and to a violation of the right to health as well as a violation of the right of detainees under article 10 (1) of ICCPR to be treated with humanity and with respect for the inherent dignity of the human person” (Report to the UN Commission on Human Rights, 62 Session, 15/2/06, UN DOC E/CN.4/2006/120).

The European Committee for the Prevention of Torture (CPT) has taken the view that solitary confinement, for whichever reason, requires particular attention. In assessing any one case, “the principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary confinement-type regime, which is a step that can have very harmful consequences for the person concerned”[14].

Grounds which were accepted by the European Court of Human Rights (ECtHR) as justifying solitary confinement include: the prisoner’s extremely dangerous behaviour[15], the prisoner’s “ability to manipulate situations and encourage other prisoners to acts of non-discipline”[16] and the prisoner’s safety[17]. The “general situation regarding terrorist climate at the time” was also found to justify severe security measures, including solitary confinement[18]. Ten years later, in 1992, the Court somewhat narrowed this view when it stated that “the undeniable difficulties inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits placed on the protection to be afforded in respect of the physical integrity of individuals”[19]. These protections are not dependent on the individual’s conduct: “The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct”[20]. In a more recent case, whilst the Court reaffirmed that the absolute prohibition against torture, inhuman or degrading treatment extends even to the “most difficult circumstances, including the fight against terrorism and organised crime”, and that solitary confinement must never be imposed on prisoners indefinitely, it ruled that holding a man who, at the time, was “considered to be the most dangerous terrorist in the world” in solitary confinement for 8 years and two months did not constitute a breach of Article 3 of the ECHR[21].

But the Court’s willingness to accept that prolonged solitary confinement may be justified in exceptional cases, particularly those involving offences against the State, does not extend more generally. The placement of a prisoner in solitary confinement because he could not adapt to an ordinary prison setting was not accepted as sufficient grounds, and was found to constitute inhuman treatment in breach of Article 3[22]. A breach of Article 3 was also found where a regime of strict solitary confinement was imposed for more than three years on a former Death Row prisoner yet “the government have not invoked any particular security reasons ... and have not mentioned why it was not possible to revise the regime[23]”.

Hence, while it is generally accepted that in the prison setting short-term solitary confinement may sometimes be necessary, its use is subjected to close scrutiny to ascertain whether it serves a legitimate purpose, and is absolutely necessary in any given case. Once it is established that the placement of a prisoner in solitary confinement has been undertaken in accordance with due process requirements and serves a legitimate purpose, the physical conditions and regime afforded to isolated prisoners are addressed. These are the subject of the following chapter.

Key points

  • The decision to place a prisoner in solitary confinement, for whatever reason, must always be made by a competent body and in accordance with due process requirements, including the right to appeal against the decision.
  • When used as punishment for prison offences, solitary confinement must only be used as a last resort, and then for the shortest time possible, no more than a matter of days.
  • Ensuring that the process through which prisoners are isolated is transparent and adheres to due process requirements not only ensures that the decision is carried out legally and professionally, but may also contribute to prisoners’ perception of their placement as being legitimate and fair and, in turn, positively affect their behaviour.
  • The use of prolonged solitary confinement for managing prisoners is rarely justified, and then only in the most extreme of cases.
  • Solitary confinement is an undesirable tool for the long term management of challenging prisoners, and may be counter-productive.
  • Those suffering from mental illness must not be placed in solitary confinement and under no circumstances should the use of solitary confinement serve as a substitute for appropriate mental health care.
  • The use of solitary confinement for pre-charge and pre-trial detainees must be strictly limited by law, must only be used in exceptional circumstances, with judicial oversight, and for as short a time as possible, never for more than a matter of days.
  • The use of solitary confinement as a means of coercing or ‘softening up’ detainees for the purpose of interrogation should be prohibited.
  • Solitary confinement should never be imposed indefinitely and prisoners should know in advance its duration.

Summary of recommendations

A number of common themes emerge from the various sources examined in the Sourcebook: a) Solitary confinement is an extreme and potentially harmful measure; b) Its use should be reserved for a handful of exceptional cases; c) Periods in solitary confinement should be as short as possible, and; d) Where prisoners are isolated they must be held in decent conditions and offered access to meaningful human contact and to purposeful activities. The deprivations inherent in solitary confinement should not be made worse by further restrictions on family visits and in-cell provisions such as books and magazines, craft and hobby materials, personal radios and so on. These may help to mitigate the harmful aspects of solitary confinement.

It is also clear that there are currently lacunae in international safeguards and protections against the misuse of solitary confinement and its negative health effects. Further development of international human rights standards is thus necessary, building on the United Nations’ call from 1990 to abolish the use of solitary confinement (Principle 7 of the UN Basic Principles for the Treatment of Prisoners). To this end, on December 9th 2007, a working group of 24 international experts adopted the Istanbul Expert Statement on the Use and Effects of Solitary Confinement, calling on States to limit the use of solitary confinement to very exceptional cases, for as short a time as possible and only as a last resort (see Appendix 2). Other such efforts should be initiated by experts, international bodies, and States Specific recommendations that this Sourcebook makes include:

Procedural safeguards

  • Inform prisoners, in writing, of the reason for their segregation and its duration.
  • Allow prisoners to make representations on their case at a formal hearing.
  • Undertake regular reviews of placement – substantive and at short intervals. These safeguards apply to all forms of solitary confinement.

Placement in solitary confinement

  • When used as punishment for prison offences, solitary confinement must only be used as a last resort, and then for the shortest time possible, lasting days rather than weeks or months.
  • The use of prolonged solitary confinement for managing prisoners is rarely justified, and then only in the most extreme of cases.
  • Those suffering from mental illness must not be placed in solitary confinement and under no circumstances should the use of solitary confinement serve as a substitute for appropriate mental health care.
  • The use of solitary confinement for pre-charge and pre-trial detainees must be strictly limited by law and must only be used in exceptional circumstances, with judicial oversight, for as short a time as possible, and never for more than a matter of days.
  • Solitary confinement must not be imposed indefinitely, and prisoners should know in advance its duration.
  • The use of solitary confinement as a means of coercing or ‘softening up’ detainees for the purpose of interrogation should be prohibited.

Physical conditions and regime

  • Provide decent accommodation (as per established standards discussed in chapter 4), reflecting the fact that prisoners will spend most of their day in their cell.
  • Provide educational, recreational and vocational programmes.
  • Provide these activities, wherever possible, in association with others.
  • Allow in-cell reading, hobbies and craft materials.
  • Ensure that prisoners have regular human contact; encourage informal communication with staff.
  • Allow regular and open family visits.
  • Enable prisoners a degree of control of their daily lives and physical environment.
  • Include a progressive element.

Health

  • Health staff must maintain the same standards of care and ethical behaviour as those which apply outside the prison, in particular the right to health care and to privacy and confidentiality.
  • Health staff must not participate in the decision to impose or the enforcement of any disciplinary measure.
  • Provide mental health training for custodial staff

Appendix 1

European Prison Rules

Council of Europe Committee of Ministers Recommendation Rec (2006)2

43.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement, shall visit such prisoners daily, and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff.

43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner’s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement...

60.5 Solitary confinement shall be imposed as a punishment only in exceptional cases and for a specified period of time, which shall be as short as possible. Note 1 When this recommendation was adopted, and in application of Article 10.2c of the Rules of Procedure for the meetings of the Ministers’ Deputies, the Representative of Denmark reserved the right of his government to comply or not with Rule 43, paragraph 2, of the appendix to the recommendation because it is of the opinion that the requirement that prisoners held under solitary confinement be visited by medical staff on a daily basis raises serious ethical concerns regarding the possible role of such staff in effectively pronouncing prisoners fit for further solitary confinement.

UN Standard Minimum Rules

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.

The Oath of Athens

(International Council of Prison Medical Services, 1979)

We, the health professionals who are working in prison settings, meeting in Athens on September 10, 1979, hereby pledge, in keeping with the spirit of the Oath of Hippocrates, that we shall endeavour to provide the best possible health care for those who are incarcerated in prisons for whatever reasons, without prejudice and within our respective professional ethics. We recognize the right of the incarcerated individuals to receive the best possible health care.

We undertake:

  1. To abstain from authorizing or approving any physical punishment.
  2. To abstain from participating in any form of torture.
  3. Not to engage in any form of human experimentation amongst incarcerated individuals without their informed consent.
  4. To respect the confidentiality of any information obtained in the course of our professional relationships with incarcerated patients.
  5. That our medical judgements be based on the needs of our patients and take priority

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

Adopted by General Assembly resolution 37/194 of 18 December 1982

Principle 1

Health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standard as is afforded to those who are not imprisoned or detained.

Principle 2

It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment. 1

Principle 3

It is a contravention of medical ethics for health personnel, particularly physicians, to be involved in any professional relationship with prisoners or detainees the purpose of which is not solely to evaluate, protect or improve their physical and mental health.

Principle 4

It is a contravention of medical ethics for health personnel, particularly physicians:

( a ) To apply their knowledge and skills in order to assist in the interrogation of prisoners and detainees in a manner that may adversely affect the physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments; 2

( b ) To certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments.

Principle 5

It is a contravention of medical ethics for health personnel, particularly physicians, to participate in any procedure for restraining a prisoner or detainee unless such a procedure is determined in accordance with purely medical criteria as being necessary for the protection of the physical or mental health or the safety of the prisoner or detainee himself, of his fellow prisoners or detainees, or of his guardians, and presents no hazard to his physical or mental health.

Principle 6

There may be no derogation from the foregoing principles on any ground whatsoever, including public emergency.


Footnotes;

  1. General comment 20/44 of 3 April 1992.
  2. See Reyes, H. The worst scars are in the mind: psychological torture, International Review of the Red Cross, Volume 89 No. 867 September 2007 pp 591-617.
  3. United Nations Human Rights Committee General comment 21/44 of 6 April 1992, para. [3].
  4. Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in 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.
  5. The brief discussion in this chapter is based on European instruments and bodies, but similar provisions are made in other regional instruments including the American Convention on Human Rights (ACHR) which proclaims in its Article 5 that “(1) Every person has the right to have his physical, mental and moral integrity respected. (2)No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person”.
  6. Ireland v UK A25 (1978) at par. 162
  7. The Greek Case, 5.11.69, Yearbook of the European Convention on Human Rights, Vol. 12,1969, p186.
  8. Dougoz v. Greece, no. 40907/98, 46, ECHR 2001-II
  9. Council of Europe, Recommendation No R(87)3, revised and replaced by recommendation (2006)2.
  10. See for example the ECtHR judgements in Ensslin, Badder and Raspe v FRG , DR 14 (1978); X v FRG, Application 6038/73 Coll. 44 (1973).
  11. Mathew v the Netherlands, Judgement of 29/9/2005 at Para. 199. See also CPT 2nd General Report CPT/Inf (92)3 par. 56
  12. Human Rights Committee, Concluding Remarks on Denmark. 31/10/2000. CCPR/CO/70/DNK
  13. General Comment 21/44, of 6 April, 1992.
  14. CPT, 2nd General Report, 1992 par. 56.
  15. M v UK, application 9907/82 DR 35 (1983)
  16. X v UK, application 8324/78 unpublished
  17. X v UK, application 8241/78 unpublished
  18. Krocher and Moller v Switzerland, DR 34 (1982) p 54.
  19. Tomasi v France A 241-A,1992
  20. Chahl v. The UK, Judgement of 15/11/96, para.79
  21. Ramirez Sanchez v. France, application no. 59450/00, Judgment of 27.1.05. The Ramirez case is quite unusual. Not only was he a very ‘high profile’ prisoner, but his conditions of confinement were relatively comfortable, he had frequent contact with people from outside the prison, and was in apparent good physical and mental health. In reaching it decision, the Court relied heavily on these factors and on the fact that he was later removed from solitary confinement and placed in an ordinary prison wing.
  22. Mathew v the Netherlands, Judgement of 29.9.2005
  23. Iorgov v. Bulgaria (2004) ECHR 113 (2005) 40 EHRR 7, ECtHR 185 par. 84

Copyright notice

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