Rights under Lockdown: Not Releasing Vulnerable Prisoners in the Time of a Pandemic is a Cruel, Inhuman or Degrading Treatment or Punishment

August, 2020

Francis Tom Temprosa & Darwin Simpelo

Articles Editor & Guest Editor

Introduction

This argues that the non-release of vulnerable prisoners in this time of a pandemic constitutes a cruel, inhuman or degrading treatment of punishment, a grave violation of the Torture Convention in international law. With the quick and far-reaching spread of the novel coronavirus or Covid-19, prisoners are among the most vulnerable people in the world. Prisoners face the real danger of Covid-19 while being held in environments that make basic health measures of personal protection and distancing impossible. While the situations of prisons, jails, and other detention centers in each country differs, there could be instances when the danger of being afflicted with the disease is grave and imminent in all carceral States. Prior to the onset of the Covid-19 pandemic, the overcrowding of jails and prisons was already an enduring problem in developed countries, including the United States, but more so in developing countries. The Philippines is one glaring example.[1] As of 2019, the jail population in the country has exceeded design capacity by 439%. The year before, jails held 136,314 persons deprived of liberty or PDLs even though the ideal capacity was only around 25,268. The most overcrowded jail in one region had a population of 5,709, but its design capacity was only for 766, thus, an overcrowding rate of 645%. In many countries like Afghanistan, India, Indonesia, Morocco, and the United Kingdom,[2] executive departments and domestic courts have released PDLs for humanitarian reasons or for reasons of public health in the wake of Covid-19. But, none of these releases have been claimed to be done under the binding force of international law. They were humanitarian acts or moves of mercy. This argues that the issue is not about mercy. It is not just about health. It is an issue of cruel, inhuman or degrading treatment or punishment (CIDTP), a prohibited treatment under international law. The non-release of PDLs amounts to CIDTP when there is reasonable ground to believe that there is grave and imminent danger that they will be afflicted by the Covid-19 disease. States should recognize this as a violation of international law.

Covid-19 and the Philippines: An Archetype of a Country Response

In the age of coronavirus, countries around the world are yet knowing the danger of the virus and its ravaging effects on prison populations. Many States have responded to decongest jails, through different schemes, but not out of a legal obligation. The Philippines presents a prototypical response to the situation. This focuses on the situation in the Philippines as a case study. This is because the Philippines is a developing State with one of the most overcrowded jails in the world and where the virus is, as of this writing, raging without abatement. In fact, as of July 15, 2020, around 500 prisoners and detainees have died from the coronavirus and other causes inside places of detention.[3] Before the pandemic, decongestion programs were in place, and the Philippine Congress enacted laws to address the perennial problem of overcrowding in jails and prisons. Among them were Republic Act No. 10389 or the Recognizance Act (stating that indigent PDLs who cannot afford bail are allowed by the Court where their cases have been filed to be released on recognizance by placing them under the custody of a qualified member of the locality where they reside) and Republic Act No. 10592 or the Good Conduct Time Allowance Act (stating that PDLs who perform good conduct during the time of their imprisonment are given a grant entitling them to deductions from the maximum imposable imprisonment or period of sentence). On January 30, 2020, the Philippine health department reported the first case of Covid-19 in the country. Per the World Health Organization, Covid-19 can easily be transmitted from symptomatic people to others who are in close contact through respiratory droplets, by direct contact with infected persons, or by contact with contaminated objects and surfaces.[4] To be fair to Philippine authorities, they acted to respond to the pandemic – but not to release prisoners because non-release of prisoners is CIDTP. The executive branch of government works to better implement the laws designed to decongest jails in this time of the pandemic. The judiciary is also playing its part in decongesting the jails.[5] The judiciary released several guidelines, such as that for decongesting holding jails by enforcing the rights of the accused to bail and to speedy trial. Subject to some conditions, the Philippine Supreme Court even grants petitions for bail for persons who allegedly committed heinous crimes.[6] Other initiatives are implemented in the country’s prison system. Inmates who are at least 65 years old can apply for executive clemency, as long as they have either served at least 5 years of their sentence or their continued imprisonment is “inimical to their health” as recommended by an appropriate physician.[7] Bail amounts were reduced to release indigent PDLs and those charged with a crime punishable of imprisonment not exceeding six months may be released on their own recognizance.[8] “Site Harry”, which is a 300-bed quarantine facility inside the national penitentiary was established.[9] Government has asked help from partners in managing isolation, control measures, and mass testing.[10] Much has been discussed on giving provisional liberty to PDLs and there is a pending petition for temporary release of elderly and sickly political prisoners before the Supreme Court in this time of the pandemic. Among 653 PDLs who are political prisoners, 53 are elderly and 95 are sick. As of July 22, there were 21,858 PDLs released among which included 409 elderly, 621 ailing and 24 pregnant prisoners. Those who petitioned the Supreme Court having the same conditions are not included.[11] However none of these explicitly recognize the non-release of prisoners as CIDTP. We believe it to be so.

Prohibition of CIDTP in International Law

The concept of CIDTP is codified in national constitutions and the laws of many countries. One may also even argue for its universality as it is enshrined in the Universal Declaration of Human Rights (UDHR Article 5), the International Covenant on Civil and Political Rights (ICCPR Article 7), and the Convention against Torture (CAT). In the drafting of the CAT, framers only decided to provide a definition for torture and exclude CIDTP in its Article 1 since it was very difficult to define it in terms acceptable to all countries and legal systems.[12] The U.N. Human Rights Committee and the Committee against Torture have not also defined what constitutes CIDTP. In particular, the U.N. Human Rights Committee does not even see it as necessary to “draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment” (General Comment 20, para. 4). What it said though is that such distinctions depend on “the nature, purpose and severity of the treatment applied” (para. 4). The aim of prohibiting torture and CIDTP is to “protect both the dignity and the physical and mental integrity of the individual” (para. 2).[13] Two relevant U.N. General Assembly resolutions – the Code of Conduct for Law Enforcement Officials[14] and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment[15] – also talk about CIDTP. Though not defined in the resolutions, the commentaries on these resolutions state that CIDTP should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental. Continued overcrowding violates country standards and the United Nations Minimum Standard Rules for the Treatment of Prisoners (Nelson Mandela Rules).[16] Combining all of these points together, what is the nature, purpose, and level of severity that distinguishes torture from CIDTP in terms of harming the dignity as well as physical and mental integrity of an individual? When is there CIDTP? A review of some cases in three regions may provide some answers for this question.

Prohibition of CIDTP in Europe

CITDP is a prohibited act under Article 3 of the European Convention on Human Rights. In Nevmerzhitsky v. Ukraine,[17] the European Court of Human Rights has this to say: “80. According to the Court’s case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum level is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim … Furthermore, in considering whether treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of such a purpose cannot conclusively rule out a finding of a violation of this provision.

The Court has consistently stressed that the suffering and humiliation involved must in any event exceed the inevitable element of suffering or humiliation connected with a legitimate deprivation of liberty. Nevertheless, in the light of Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention, and that, given the practical demands of imprisonment, the person’s health and well-being are adequately secured … with the provision of the requisite medical assistance and treatment … When assessing conditions of detention, account has to be taken of the cumulative effects of these conditions, as well as the specific allegations made by the applicant.”

Prohibition of CIDTP in the Americas

CIDTP was not defined in either the American Convention on Human Rights or the Inter-American Convention to Prevent and Punish Torture. But, the Inter-American Court of Human Rights has defined cruel and inhuman treatment as “an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.”[18] The Court argued that “(t)he degrading aspect is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance.” As for inhuman treatment, the Inter-American Court has connected it to barbarous treatment involving a total absence of empathy and humanity towards people subjected to it. One prominent case in this region is Brown v. Plata, 563 U.S. 493 (2011)[19] of the United States. Referring to CIDTP as cruel and unusual punishment in the Eighth Amendment of the U.S. Constitution and the Prison Litigation Reform Act (PLRA), the US Supreme Court ruled that it has to provide remedies to inmates against deprivation of their basic sustenance, including adequate medical care. In this case set in the State of California, the U.S. Supreme Court attributed this situation to overcrowding of prison facilities at nearly 200% of their design capacities. The State of California faces budgetary constraints; thus, they cannot construct more detention facilities. As a remedy, the U.S. Supreme Court called on the State of California to abide by the order of its three-judge court to reduce the State’s prison population to 137.5% of design capacity within two years to lessen crowding. In doing so, the US Supreme Court advised that “the reduction need not be accomplished in an indiscriminate manner or in these substantial numbers if satisfactory, alternate remedies or means for compliance are devised. The State may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs, that will mitigate the order’s impact.”

Prohibition of CIDTP in Africa

In Africa, the rulings of its various high courts provide more details on what CIDTP is.[20] In a case in Zimbabwe where there was a lack of toilet facilities in prisons, its Supreme Court said that “treatment of an arrested, detained or convicted person that affronts the dignity of that person, that exceeds the limits of civilized standards of decency and involve the unnecessary infliction of suffering or pain is inhuman and degrading for the purposes of the supreme law of the land.” The Supreme Court of Malawi, where there was a case in which prisoners argued that their imprisonment in overcrowded and poorly ventilated prisons amounted to torture, cruel, inhuman or degrading treatment or punishment, ruled that “(p)risoners have the right not to be subjected to torture and cruel treatment… packing inmates in an overcrowded cell with poor ventilation with little or no room to sit or lie down with dignity but to be arranged like sardines violates basic human dignity and amounts to inhuman and degrading treatment and therefore unconstitutional.”

Commentary of the Special Rapporteur on Torture and CIDTP

In his report to the U.N. General Assembly, Special Rapporteur on Torture and CIDTP Nils Melzer made distinctions between torture and CIDTP.[21] For one, torture constitutes an aggravated form of cruel, inhuman or degrading treatment or punishment. Another point raised is that CIDTP becomes torture when it is deliberate causing severe physical or mental suffering to attain a certain purpose (i.e,. punish, intimidate or gather information). Thus, CIDTP “can also comprise the infliction of pain or suffering without deliberate intention (for example, as an expected or unexpected incidental effect) or without instrumentalizing such pain and suffering for a particular purpose.”

Prohibition of CIDTP – And the Need to Recognize It

This used the Philippine situation to demonstrate an acute problem in jails in this time of the Covid-19 pandemic. Many States that have faced the problem of persistent overcrowding in jails now confront the possible spread of the disease inside jails. There are risks to life and health and also to releasing prisoners to the community. It has effects on rights and the service of justice in society. All over the world, many States punish CIDTP in domestic laws. But it is not in the center of the conversation of prison reform in this time of Covid-19. For instance, the Philippine Constitution states that “(e)xcessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted.” (Art III, Sec. 1 (1)) During the deliberations of the Constitutional Commission of the 1987 Constitution, it was agreed that: “(I)f a prison is subhuman and it practices beatings and extended isolation of prisoners, and has sleeping cells which are extremely filthy and unsanitary, these conditions should be included in the concept of “cruel and inhuman punishment.” Even without amendment but with this concept, I would like to encourage the legislature to give higher priority to the upliftment of our jails and for the judiciary to act because the judiciary in habeas corpus proceedings freed some prisoners. So, by means of injunction, the courts stopped these practices which are inimical to the constitutional rights of inmates. On the part of the executive, it initiated reforms in order that the jails can be more humane and fair… [The] purpose is to abate the inhuman treatment, and thus give spirit and meaning to the banning of cruel and inhuman punishment. In the United States, if the prison is declared unconstitutional, and what is enforced is an unconstitutional punishment, the courts, because of that interpretation of what is cruel and inhuman, may impose conditions to improve the prison; free the prisoners from jail; transfer all prisoners; close the prison; or may refuse to send prisoners to the jail.” [22] Lawmakers were not able to reflect these insights from the constitutional framers when they drafted Republic Act No. 9745, or the Anti-Torture Act of the Philippines. Instead, it defines CIDTP as “a deliberate and aggravated treatment or punishment not enumerated under Section 4 (Acts of Torture), inflicted by a person in authority or agent of a person in authority against a person under his/her custody, which attains a level of severity causing suffering, gross humiliation or debasement to the latter (Section 3(b)).” The point is that States have various laws that could be a basis for to detest CIDTP and that the prohibition of CIDTP is a universal norm. However, there is less of an attention to CIDTP, even at this time. There are reasons for this. The Philippine case tells us of a law against torture that defines what CIDTP is as a whole, but does not define its components. It also does not provide a list of prohibited acts. It does not establish sharp distinctions between the different kinds of punishment or treatment. States are preoccupied with torture and its elements – less with CIDTP. There are concerns of national security if prisoners are released, occupying and predominating conversations. And not why people should be released. States are also concerned with the health concerns of society so much so that those far from society are paid less attention.

Conclusion

Freedom from CIDTP is a right. As seen from the viewpoint of international law and State practice, based on a brief survey above, some commonalities are present: (1) acts of CIDTP — like torture — attack the dignity as well as physical and mental integrity of a person, (2) a minimum level of severity is met once it exceeds the inevitable element of suffering or humiliation connected with a legitimate deprivation of liberty, (3) conditions of detention are not compatible with respect for human dignity, (4) manner and method of the execution of interventions by jail management subject the individual to distress or hardship exceeding the unavoidable level of suffering inherent in detention, (5) the person’s health and well-being are not adequately secured due to lack of provision of requisite medical assistance and treatment, and (6) CIDTP may not have to be deliberate and purposive. These are also in line with the thinking that subhuman conditions of jails constitute CIDTP. States should act against CIDTP. Several conclusions may be drawn. First, the affliction of a disease is not and should never be part of lawful punishment. The affliction of a disease is not part and parcel of the punishment of an individual who has transgressed the law. As such, where there is grave and imminent danger that an individual could be afflicted by the Covid-19 pandemic, government inaction could amount to CIDTP. It is treatment or punishment that is not in accordance with the law. Second, the Covid-19 disease attacks the dignity of the person, as well as their physical and mental integrity, meets the minimum level of severity for a CIDTP when imposed as treatment or punishment, and meets all the above-mentioned characteristics of CITDP. In many parts of the world, the overcrowding of detention facilities is already in itself a concern. However, while this is not deliberate and purposive on part of governments, the diseases and cramp-like environment of detention facilities already – where social distancing is not possible – attacks the dignity as well as physical and mental integrity of PDLs. The severity of suffering in this situation has already exceeded the unavoidable regular suffering that one would endure due to the legitimate deprivation of liberty. The pandemic already aggravates this condition. While everyone could be vulnerable to the disease, not releasing PDLs, where such affliction is grave and imminent, is tantamount to CIDTP. Third, the release of PDLs whose affliction with COVID-19 could be grave and imminent calls for an independent action to address the matter, independent of other schemes under the law for release of prisoners and/or other PDLs. The primary remedy for governments would have been constructing more jail facilities to address overcrowding. Given the lack of budget and the urgency of addressing the pandemic, another option would be to release some PDLs to decongest the jails and for them to socially distance. As argued, the release can be made in an indiscriminate manner where alternate remedies or means for compliance are devised. It does not have to be a zero-sum game. States have implemented measures, such as releasing PDLs thru recognizance, employing good time credits, and lowering of bail. However, there could be instances when someone does not qualify under any of the above schemes. Current measures to decongest jails in times of a pandemic may also only cover PDLs involved in low-level crimes. PDLs who are involved with heinous crimes could still remain in jail despite many of them being vulnerable to the pandemic. Other approaches are still possible and schemes that are compatible with human dignity could be devised. Not allowing those who desire to petition for bail violates the principle of equality and non-discrimination. The non-release of PDLs who may be afflicted with Covid-19 amounts to CIDTP. The release should be grounded on the human right to be free from CIDTP, independent of humanitarian release, and of other schemes found under the law.

Francis Tom Temprosa: Doctor of the Science of Law (SJD) Candidate, Michigan Grotius Fellow, University of Michigan Law School; Director IV, Commission on Human Rights (Philippines); Adjunct Professor of Law, Ateneo de Manila University School of Law; Assistant Professorial Lecturer IV, De La Salle University Manila College of Law

[1] Elizabeth Marcelo, ‘Jail congestion drops 439% in 2018, but…’, The Philippine Star (June 11, 2019, 12:00AM ), ,https://www.philstar.com/headlines/2019/06/11/1925526/jail-congestion-drops-439-2018-but. [2] Jodesz, Gavilan, List: Countries releasing prisoners over coronavirus fears, Rappler (April 7, 2020,10:39 AM), https://rappler.com/newsbreak/iq/list-countries-release-prisoners-over-coronavirus-fears. [3] DILG: 22k PDLs released by BJMP in decongestion program, Department of the Interior and Local Government, ( July 22, 2020), https://www.dilg.gov.ph/news/DILG-22k-PDLs-released-by-BJMP-in-decongestion-program/NC-2020-1253; Benjamin Pulta,, BuCor chief’s call to go on leave pending PDL deaths probe: DOJ, Philippine News Agency (July 23, 2020, 6:28PM), https://www.pna.gov.ph/articles/1109909. [4] Coronavirus disease 2019 (COVID-19) Situation Report –73, World Health Organization. (April 2 2020), https://www.who.int/docs/default-source/coronaviruse/situation-reports/20200402-sitrep-73-covid-19.pdf. [5] Rey Panaligan, SC mobile courts in Sultan Kudarat hear 42 cases, release 5 prisoners, Manila Bulletin (November 29, 2019), https://news.mb.com.ph/2019/11/29/sc-mobile-courts-in-sultan-kudarat-hear-42-cases-release-5-prisoners/ [6] Juan Ponce Enrile vs. Sandiganbayan and People of the Philippines, GR No. 213847 (S.C., Aug. 18, 2015) (Phil.). [7] Board of Pardons and Parol, Interim Rules on Parol and Executive Clemency, Board Resolution No. OT-04-15-2020, https://law.upd.edu.ph/wp-content/uploads/2020/04/DOJ-BR-No-OT-04-15-2020.pdf [8] Supreme Court, Administrative Circular No. 38 – 2020 (April 30,2020), http://sc.judiciary.gov.ph/11306/ [9] Kenneth Paciente, DOJ closely monitors jail facilities in PH, PTV News. (April 24, 2020) https://ptvnews.ph/doj-closely-monitors-jail-facilities-in-ph/. [10] Benjamine Putla, SolGen urges SC anew to reject release of jailed Reds, Philippine News Agency (4 May 4, 2020), https://www.pna.gov.ph/articles/1101819. [11] Lady Ann Salem. What happened to our Supreme Court petition for release of elderly and sick political prisoners? – KAPATID. Manila Today (July 24 2020), https://manilatoday.net/what-happened-to-our-supreme-court-petition-for-release-of-elderly-and-sick-political-prisoners-kapatid/ [12] U.N. Commission on Human Rights, Rep. on the 34^th Session (6 February – 10 March 1978), https://uvallsc.s3.amazonaws.com/travaux/s3fs-public/E-1978-34__E-CN_4-1292.pdf?null [13] U.N. Human Rights Committee, General comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment) (1992). https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCCPR%2fGEC%2f6621&Lang=en [14] G.A. Res. 34/169, Code of Conduct for Law Enforcement Officials (Dec. 17, 1979). [15] G.A. Res. 43/173, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Dec. 9, 1988). [16] G.A. Res. 70/175, UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf (Dec. 17, 2015). [17] European Court of Human Rights, Press Release, Nevmerzhitsky v. Ukraine, App. No. 54825/00 (May 4, 2005), https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-1306808-1363018%22]}. [18] Diego Rodriguez-Pinzon and Claudia Martin , The Prohibition of Torture and Ill-Treatment in the Inter-American Human Rights System: A Handbook for Victims and their Advocates (2^nd ed.), https://www.omct.org/files/2014/11/22956/v2_web_guide_interamricain_en_omc14.pdf [19] Brown vs. Plata, 563 U.S. 493 (2011). [20] Jamil Ddamulira Mujuzi Domestic courts and the promotion and protection of the right to freedom from torture in Southern African Development Community countries, Speculum Juris, 2(2), 22-44 (2013), https://repository.uwc.ac.za/xmlui/handle/10566/1941 [21] U.N. Secretary-General, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to the United Nations General Assembly, Extra-custodial use of force and the prohibition of torture and other cruel, inhuman or degrading treatment or punishment, U.N. Doc. A/72/178 (July 20, 2017). [22] Records of the Constitutional Commission No. 32, Thursday, July 17, 1986, https://www.officialgazette.gov.ph/1986/07/17/r-c-c-no-32-thursday-july-17-1986/ The views expressed in this post represent the views of the post’s author only.