Preventing harm and human rights violations in criminal justice systemsWelcome Remarks by Assistant Secretary-General for Human Rights, Ilze Brands Kehris

Human rights in detention – key ongoing concerns

14 July 2020

Thank you for the opportunity to speak today and for launching this important discussion on preventing harm and human rights violations in criminal justice systems amidst COVID-19.

Roughly four months into the pandemic, we have begun to see some positive signs. Infection rates are dropping in some parts of the world with life slowly inching back to normality. However, the virus is resurging and spreading rapidly in other areas. COVID-19 continues to create extreme hardship for millions of people and the rest of us remain at risk.

Throughout this period, people in detention have remained particularly vulnerable. As evidenced by recent outbreaks and deaths in prisons, the virus continues to take firm hold in the crowded and confined environment that characterizes most detention facilities. Restricted access to hygiene and health care exacerbates this problem. In light of the very specific exposure to, and increased risk, of infection, persons deprived of their liberty require specific and urgent attention. This concerns not only people in prisons, but also those in administrative detention centres, immigration detention centres and drug rehabilitation centres.

Since the outset of the crisis, the situation of persons deprived of liberty has been of particular concern for our Office. In March, the High Commissioner called on States to examine ways to release those especially vulnerable to the virus, including older persons, the sick as well as low risk offenders. We have also continuously emphasized that now is the time, more than ever, to release those detained without sufficient or no legal basis, including political prisoners and those detained for critical, dissenting views.  Let me reiterate that at all times – but especially now – all those detained arbitrarily should be released and alternatives to detention should be prioritized. Indeed, the urgency could be a catalyst for these deeply underutilized measures.

In March, together with WHO, we drafted guidance issued by the UN Inter-agency Standing Committee drawing attention to specific issues regarding COVID and persons deprived of their liberty, which should be raised with national services and ministries. In May, we issued a joint statement together with UNODC, WHO and UNAIDS on the impact of COVID-19 in prisons and other closed settings. We urged political leaders to acknowledge the heightened vulnerability of people deprived of liberty to the COVID-19 pandemic and we stressed that the health of detainees should be considered a public health issue.

We also issued a joint statement in June, together with twelve other UN agencies, on compulsory drug detention and rehabilitation centres in Asia and the Pacific in the context of COVID-19. It urges States to permanently close these centres and implement voluntary health and social services to curb the spread of COVID-19 and facilitate the reintegration of persons in the centres into their families and communities.

Throughout the pandemic, our office, including through our field presences, has been monitoring the situation of persons in detention worldwide. This sustained effort has given us an insight into successes as well as the main human rights concerns that remain for people in detention.

The primary positive outcome we have seen thus far as a result of our advocacy is the release by numerous Governments of tens of thousands of prisoners, in line with our calls to address contagion and over-crowding. Reliable figures indicate that nearly six percent of the global prison population has been approved for eventual release.

Unfortunately, however, challenges persist.

• Places of detention continue to require upgraded healthcare. Although their obligations under international human rights law are clear, many States continue to neglect the right to health of detainees. Too many countries have blanket denials of visitation rights during the pandemic which have prevented family members and loved ones from filling these gaps and from providing critical food and medical supplies for detainees. I wish to recall here that, that as per the Nelson Mandela Rules, all persons in detention should have access to the same standard of health care as is available in the community at large.

• Some countries have hastily erected quarantine facilities in prisons that fail to respect the non-derogable right of all detainees to be treated humanely and with respect for the inherent dignity of the human person.

• We have also learned of compulsory quarantine zones that deprive persons of their liberty in an unpredictable and disproportionate manner without due process of law, raising the specter of arbitrary detention.

• In some instances, countries have used COVID-19 as a pretext for restricting the rights of certain categories of detainees. We have received information indicating that political prisoners are in some instances being denied the right to consular access, including in death penalty cases. This raises serious concerns regarding the right to a fair trial, the right to life and the prohibition against arbitrary detention, among others.

• Many countries have instrumentalized the pandemic to usher in expansive laws on national security, which dilute international norms and standards on the use of force, restrict the right to peaceful assembly and afford security forces sweeping powers to arrest and to detain. In addition to threatening human rights, these laws risk increasing the population in detention centers, which will do little to halt the disease’s spread.

• Recourse to alternatives to imprisonment, including replacing detention with non-custodial measures at the sentencing stage, remains insufficient. We continue to urge States to consider implementing schemes of early, provisional or temporary release for those detainees for whom it is safe to do so. These schemes should take full account of non-custodial measures as provided for in the UN Standard Minimum Rules on Non-custodial Measures, the ‘Tokyo Rules,’ and the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders, the ‘Bangkok Rules’.

All these challenges are exacerbated for members of racial and ethnic minorities and indigenous peoples. This is particularly the case for people of African descent in some countries, who – across every area of the Afro-descendant diaspora – continue to face intersecting forms of structural discrimination. They often are on the front lines of unprincipled and discriminatory policing before being at the mercy of biased criminal justice systems. As a result, racial and ethnic minorities are overrepresented in detention centers in many countries. In the context of COVID-19, this makes them disproportionately vulnerable to the virus. Put bluntly, discrimination kills.

If anything, this pandemic has clearly exposed systemic failures to uphold human rights, including those of people in detention. To end their suffering, as swiftly as possible, and to enable effective recovery, policies must address the inequalities and protection gaps that have made some communities and individuals in many societies so vulnerable. As the Secretary-General mentioned in his brief on COVID-19 and Human Rights, human rights cannot be an afterthought in times of crisis - people and their rights must be front and center. This is also the central tenet of his Call to Action for Human Rights.

The briefing you are releasing today and this discussion is an important contribution to this effort. I look forward to continued collaboration with PRI as we strive to build fair and effective criminal justice systems that strengthen respect for human rights, reinforce the rule of law and achieve the 2030 sustainable development agenda.

Thank you.