This project seeks to promote access to justice and healthcare for people in prisons who today live in overcrowded conditions, suffering from inhuman and degrading treatment and even torture.  The experts tell us how the pandemic has further exacerbated prisoners’ poor living conditions, generating a prison emergency in which the right to life cannot be guaranteed, and they leave us with a series of international recommendations to deal with the problem.

About a year ago, in February 2019, we published an article in which we reported on the work done by the European Union EUROsociAL+ Programme in coordination with the Inter-American Association of Public Defenders (AIDEF) in designing of a Regional Model of care for victims of institutional violence in prisons. At that time, we were already announcing a project to create a System of Registration, Communication and Comprehensive Care for Victims of Institutional Prison Violence (SIRCAIVI) in several Latin American countries. We hoped that if it was implemented as a new public policy, it might be very useful in promoting true access to justice and health (physical and mental) for those who may suffer inhuman or degrading treatment and even torture in jails.

This project was recently launched by EUROsociAL+ in Argentina, Chile and Costa Rica, in coordination with the Public Defenders of these countries.  Those of us who have been working on these issues for years at the Observatory of the Penal System and Human Rights at the University of Barcelona know the importance of permanent monitoring of prisons to promote a revaluation of the fundamental rights of people in custody. The project was already important in fulfilling that purpose then, but the current health emergency caused by Covid-19 in prisons has turned it into a priority.

If a year ago we were already aware of the serious situation of overcrowding in prisons in Latin America, where the average ratio of prisoners to every 100,000 inhabitants was 387 while the world average was 144, one year later, we have seen some systems that have broken almost all growth records worldwide. Since 2000, while the prison population in the world has grown by 24% on average, in Latin America it has grown by 121% – 67% in Central America and a spectacular 175% in South America.

Prison emergency

But the problem is not only quantitative, but also qualitative, where this extreme lack of space is compounded by serious deficiencies in health, food and safety, generating unhealthy environments where it is easy for diseases to spread and where conflicts between prisoners themselves and between prisoners and prison staff also make prisons places where institutional violence is the norm. It is not surprising that we have witnessed the sad news of riots and fires in prisons resulting in the deaths of tens or hundreds of people. Not surprisingly, in several countries the prison situation has been publicly declared a “prison emergency” or an “unconstitutional state of affairs”. Therefore, if the region’s prisons have become a time bomb since the beginning of the 21st century, where their collapse does not even guarantee their inhabitants the right to life or physical and mental integrity, the appearance of COVID-19 only serves to accelerate the countdown.

The combination of this new health emergency with the structural existence of extremely high levels of prison overcrowding in Latin America sounds an alarm that must be addressed immediately. Numerous international pronouncements have been published in recent weeks in that direction. From the United Nations, its High Commissioner for Human Rights, Michelle Bachelet, has called out forcefully for a demographic reduction in prisons. The same has been said by the UN Subcommittee on the Prevention of Torture. At the European level, the Committee for the Prevention of Torture and Other Inhuman or Degrading Treatment or Punishment has drawn attention to the responsibility for ensuring the right to health in prisons. Regarding Latin America, both the Commission and the Inter-American Court of Human Rights have published statements, recommendations and warnings about it. All these pronouncements (from organisations such as Amnesty International, Prison Reform International and Human Rights Watch) coincide on: the need to promote alternative or extra-penitential measures; the need to broaden the concept of the right to communications between these people and their families; the consideration that a prison term in the current circumstances and in countries with prison overcrowding may lead to the submission of prisoners to cruel, inhuman or degrading treatment or punishment, which must be combated, and; the need to strengthen prisoners’ right to health.

International Human Rights Law emphasises the “special position of guarantor” in which States find themselves with respect to the rights of people in prison. This means that it is their obligation to guarantee the health of prisoners, as well as to fulfil the measures required by free society, such as those of social distancing. But in overcrowded prisons, this is simply a pipe-dream. There is no alternative: public action plans aimed at drastically reducing the imprisoned population must be implemented.

International recommendations

The Magistrate of the Inter-American Court of Human Rights, the prestigious criminal justice expert Raúl Zaffaroni, states emphatically that we cannot deceive ourselves: “Thousands of human lives are at stake here and no one will be able to claim ignorance of this in the future, since we are all fully aware of the illegality of those sentences in such conditions of serving time, and if we do not do the right thing now, it is because the possibility is being wilfully accepted of the death of thousands of people, more than half of whom, in our countries, are not even convicted. We are facing a catastrophe and the states that allow the death of thousands of people in their overcrowded prisons would be internationally responsible, without prejudice to their authorities being responsible for large-scale crimes involving the abandonment of people. Let us not forget that letting thousands of people die, with a clear awareness that this would inevitably be the result of their inaction, omitting the urgent measures demanded by all the responsible bodies in the world, would be a typically wilful behaviour of mass abandonment of people, clearly characterised as a crime against humanity”.

Faced with such a panorama, we believe that the implementation of SIRCAIVI should include actions aimed at reducing the impact of the pandemic in prisons in Latin America. Especially insofar as it can directly influence the concept of institutional prison violence. It is in this sense that the Public Defenders of Argentina, Chile and Costa Rica (where the SIRCAIVI will be located) can see that their role of protecting the rights of people in prison will be strengthened as they take on the tasks of registering incidents caused by the pandemic, monitoring their evolution, and offering information to these people and their families.

Specifically, compliance with international recommendations can and should be monitored. These measures are also being demanded in European Union countries, with different degrees of acceptance.

The pandemic is global. Avenues used to deal with pandemics must also follow a common roadmap, which is the one that emerges from the international recommendations. Their timely fulfilment, before it is too late, is not only a legal duty but an ethical imperative in which, as part of contemporary civilisation, we all have a great stake.

Alejandro Forero Cuéllar and Iñaki Rivera Beiras, from the Observatory of the Penal System and Human Rights at the University of Barcelona, and experts from the EUROsociAL+ Programme.

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