are more than 10.7
million people imprisoned throughout the world. Prisons are notorious incubators and amplifiers of infections, and the fear
among inmates due to COVID-19 is deepening all across the world (France, UK, US and Australia among many others). During the
current pandemic, protecting prisons from
the ‘tidal wave of COVID-19’ proves to be a challenging issue for States. After all, they have obligations and duties under
international law to safeguard the human rights of prisoners, particularly
their right to life, health and human treatment.
An imminent threat for those deprived of their liberty
As highlighted by the World Health Organisation in its guidance
report of 15 March 2020, people deprived
of their liberty are likely to be more vulnerable to the COVID-19 outbreak than
those outside. They live in confined conditions and in close proximity where
the virus can be easily spread. An outbreak in such settings is likely to go
beyond those incarcerated – a risk that may potentially threaten the larger
Some scientific facts are due. COVID-19 is a virulent disease with highly
infectiousness nature, which has so far infected over 700,000 people and claimed
than 33,000 lives. There is not
any known cure or vaccine for this disease – though some projects are underway. As the global health experts
suggest almost on a daily basis, self-isolation, social distancing and personal
hygiene are the
best protective measures against the infection. Even
in cases where patients recover, they may still suffer permanent
lung damage. It is thus safe to assume that the threat COVID19 poses is neither
remote nor imagined. Instead, it is actual and imminent, and this threat is much more
severe for those in prisons, closed detention centers and similar settings.
States’ obligations concerning the right to life and the right to health
As detailed in the UN Human Rights Committee’s General Comment No. 36, Article 6 of the International Covenant on Civil and
Political Rights (ICCPR) recognizes and protects the right to life of all human beings. This right is of a non-derogable
nature and continues to apply in all circumstances, including in public
emergencies and situations of armed conflict. State parties have positive
obligations in addressing ‘the general conditions in society that may give rise
to direct threats to life’ (para. 26) and this includes the prevalence of life-threatening
diseases such as the COVID-19 pandemic.
As for the right to health, the ICCPR does not expressly provide for a
right to health care. However, proceeding from the right to life under Article
6 ICCPR and the right to human treatment under Article 10 ICCPR, the Human
Rights Committee consistently held that, by arresting and detaining
individuals, the State parties ‘take on the responsibility to care’ for
prisoners’ life (Lanstova v. Russia) and well-being (Fabrikant v Canada). A failure to separate prisoners with
transmissible diseases from other prisoners could also raise issues under
Articles 6 and 10 (Cabal and Pasini v. Australia).
Similarly, Article 2 of European Convention on Human Rights (ECHR) enjoins State parties ‘not only to refrain from the
intentional and unlawful taking of life, but also to take appropriate steps
to safeguard the lives of those within’ their jurisdiction (Guiliani and Gaggio v Italy). These obligations apply in the context of any activity, whether public or not, in which the
right to life may be at stake (Centre for Legal resource on behalf of Valentin
Campeanu v. Romania).
More particularly, in Eremiasova and Pechova vs. the Czech Republic, the Court reiterated the State’s duty to ‘protect life of arrested and
detained persons from a foreseeable danger occurring’. This evidently includes
States’ positive obligation to eradicate or prevent the spread of a particular
disease or infection (Shelley v. the UK). More recently, in the cases of Poghosyan v. Georgia and Ghavtadze v. Georgia, the Court required Georgia take the necessary legislative and
administrative measures to prevent the spreading of contagious diseases, such
as tuberculosis and hepatitis, in prisons.
The right to health is also not explicitly enshrined in the ECHR.
However, on the basis of Article 3 ECHR (as well as Article 8 and 14), States
are required to secure the health of prisoners in an adequate and timely
fashion by, inter alia, providing them with medical assistance (Keenan v. the UK). And, as the Court held, unhygienic, unsanitary conditions, which are
often found in combination with overcrowding, may amount to degrading treatment
under Article 3 (Kalashnikov v. Russia).
What should States do?
Several human rights and policy institutions have issued demands and guidelines for how States should deal with the COVID-19 pandemic in prisons. Many countries across the world are already taking steps to reduce the risk of outbreaks. Four countries in the Middle East have commuted jail terms or temporarily released prisoners. In Turkey, a draft law was submitted to the Parliament on 31 March which is expected to be passed within days. It would lead to the early release of up to 90,000 prisoners – around one third of Turkey’s prison population. The draft law has drawn sharp criticism on discrimination grounds as it reportedly excludes thousands of political prisoners unfairly charged with terrorism offences or crimes against the State.
The spread of Covid-19 in prisons is clearly not a matter of if, but when. What States should do to protect prisoners is indeed straightforward and the European Prison Rules adopted by the Council of Europe in 2006 may be used as a guideline: they should provide access to health services available in the country without discrimination on the ground of their legal situation. If this is not possible, as reiterated by the European Committee for Prevention of Torture (CPT) on 20 March 2020, States should consider measures alternative to imprisonment such as commutation of sentences, early release and probation. It must be noted that neither the ICCPR nor the European Convention lay down a general obligation to release prisoners on health grounds, but, as the CPT underlined, such an approach may be imperative in the face of the unprecedented COVID-19 pandemic. Similarly, on 25 March, the UN Commissioner for Human Rights, Michelle Bachelet, has called on governments to work quickly to reduce the number of people in detention – those particularly vulnerable to COVID-19, among them older detainees and those who are sick, as well as others detained simply for expressing critical or dissenting views, including political prisoners.
Such repeated calls are indeed for good reason. As detailed above, States have obligations under international law. In case where mass-deaths or permanent organ failures occur due to the spread of this epidemic within prisons, their accountability may arise. Before COVID-19 spreads like wildfire through prisons, States should take swift action.