01 Apr COVID-19 Symposium: The Impact of Coronavirus (COVID-19) on Prisoners
[Toby Cadman is the Co-Founder and Head of Chambers of Guernica 37 International Justice Chambers in London.]
As a general concept, it is an established principle of international human rights law that in addition to the negative obligation not to commit acts in breach of rights contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the overriding principle in Article 1 extends a positive obligation on States to protect individuals and secure rights under their jurisdiction. Thus, an act not directly imputable to the State may generate the responsibility of the State, not because of the act in and of itself, but due to the lack of due diligence to prevent or remedy the act. A failure by the State or its public authorities, such as the law enforcement and its penal institutions, to exercise due diligence may give rise to State responsibility even if the act in question is committed by non-state actors, but also where an individual is placed in an environment where their physical and mental well-being is foreseeably at risk.
Human rights standards expressly require States to regulate the conduct of state and non-state actors and contain explicit obligations for States to take effective measures to prevent violations of human rights. It is submitted in this regard that ‘due diligence’ requires States to take reasonable or serious steps to prevent or respond to a violation that is foreseeable and preventable. It is an established principle of international human rights law that where persons are detained in an environment or under conditions that gives rise to a prima facie breach, the national authorities may be held accountable. Further, where necessary medical care is withheld, whether intentionally or through a failure in the state apparatus, it may constitute inhuman or degrading treatment or punishment and, in exception circumstances, it may reach the threshold of torture.
In considering an allegation of whether a person detained is at risk of treatment that approaches a breach of Articles 2 and 3 of the Convention, the test in applying a State’s positive obligation to take preventative operational measures to protect an individual whose life is at risk due to conditions of detention, is one of ‘real risk’.
It is recognized that in such cases the positive obligation extends to taking preventive measures to protect the physical integrity of those subject to detention (see Pantea v. Romania  40 E.H.R.R. 459). The European Court has qualified such an approach by confirming that the exercise of the positive obligation to ensure protection of such fundamental rights ‘should be interpreted in such a way as not to impose on the authorities an intolerable or excessive burden’.
COVID-19 has been declared a global pandemic and, as it is spreading, identified vulnerabilities such as the situation of persons deprived of their liberty in prisons, administrative detention centres, immigration detention centres and drug rehabilitation centres, require a specific focus.
From the outset, it is inevitable that the impact of the COVID-19 pandemic will place prisoners globally at greater risk. Persons deprived of their liberty face higher vulnerabilities as the spread of the virus can expand rapidly due to the usually high concentration of persons deprived of their liberty in confined spaces and restricted access to hygiene and healthcare in some contexts. In particular, this will be the case in prisons and detention centres that do not have appropriate medical facilities.
In Egypt, for example, with the spread of the COVID-19, the total lack of healthcare provision, along with severe overcrowding and lack of sanitation, the continued imprisonment of political dissidents amounts to torture as a matter of international law, and it would constitute an extrajudicial killing by the State where there is the inevitable loss of life.
Recently, a letter was smuggled out of a Cairo prison detailing the most appalling prison conditions, where detainees are subjected to conditions that can only be described as in breach of fundamental rights such as access to daylight, proper sanitation, family or legal visits, food or necessary medical care. Earlier this month, detainees started to display symptoms consistent with COVID-19: coughing, high temperature, cold, and pneumonia. Panic and anxiety broke out in prisons where health deteriorates rapidly, and no medical care is provided. Detainees appealed for the help of the prison administration and officials; however, these appeals were met with a deliberate and sickening disregard, and prison officials failed to act. None of those detainees displaying symptoms have been admitted to hospital nor have they been seen by a doctor. There is a state of fear and terror amongst prison officers, and medical staff have refused to enter the prison block. Against this culture of deliberate disregard for the safety and well-being of detainees, it is only to be expected that there will be a significant loss of life if the authorities fail to take urgent action. This is in an environment where UN experts have already deplored the existing conditions prior to the outbreak of COVID-19.
There is further a real risk that repressive states could use the COVID-19 pandemic as a way of further eroding the fundamental rights of prisoners. It has been reported that Iran, Bahrain and Jordan have released detainees to prevent a humanitarian crisis, yet States such as India, Bangladesh and Egypt have resolutely refused to take any action. It must therefore fall on the international community to intervene in circumstances where there are tens of thousands of detainees, many of those being political prisoners, held in conditions where UN human rights experts have already stated that there is credible evidence to suggest that gross human rights violations may be a reality. These experts have stated that many of Egypt’s thousands of detainees ‘may be at risk of death’ and have thus urged the authorities to ‘reverse what appears to be deeply entrenched practices’ on people’s right to a life free of torture, ill-treatment, and the right to due process and medical attention. As the UN experts have confirmed, these violations place detainees at risk of death or ‘irreparable damage to their health’. As such, the experts have already called for an effective and impartial investigation into those prisoners who died in custody since 2012 – years prior to the emergence of COVID-19.
We must remind all States that there is an obligation to respect,and refrain from breaching, any and all rights secured by international human rights law (negative obligation) and to ensure their protectionto all individuals within their territory (positive obligation). Accordingly, a State may be held responsible for committing breaches of human rights and for failing to prevent others from taking any action that violates human rights or fundamental freedoms, such as arbitrary arrest and arbitrary or incommunicado detention; acts of torture or inhuman or degrading treatment; and extra-judicial execution by agents of the State; including police, military, intelligence operatives or other public officials. We reiterate that it is an established principle of international law, that the withholding of necessary medical care amounts to torture for which the authorities will be held responsible.
Of course, the COVID-19 pandemic may warrant the widespread release of prisoners. However, if this were to be implemented, it would be essential to first establish the criteria for such release. In the United Kingdom, the High Court recently rejected calls to free hundreds of immigration detainees who, lawyers and human rights activists say, are at risk from COVID-19 while behind bars. The legal action asked for the release of hundreds of detainees who are particularly vulnerable to serious illness or death if they contract the virus because of health conditions, and also for the release of those from 50 countries to which the Home Office is currently unable to remove people because of the pandemic. The two judges came down strongly on the side of the Home Office and highlighted the range of measures already being implemented by the Home Secretary, Priti Patel. These included the release of more than 300 detainees last week, ongoing assessments of the vulnerability of individual detainees to the virus and a range of ‘sensible’ and ‘practical’ steps the Home Office is taking to make detention centres safer, such as single occupancy rooms and the provision of face masks for detainees who wish to wear them.
There of course must be a counter-balancing act when considering the steps that can be taken that are necessary to ensure that the interests of justice are met, whilst ensuring that prisoners are not exposed to risks that put their lives in danger. The steps taken must be proportionate and must be necessary. States are obliged to protect the safety and well-being of prisoners within their jurisdiction and control (as set out in the UN Standard Minimum Rules for the Treatment of Prisoners). At present, there is a heightened risk within (and outside of) prisons, but States need to recognise the risk and respond accordingly. Positive steps should be taken to assess the adequacy of prison conditions in light of the COVID-19 situation, and these assessments should be carried out by state authorities as a matter of urgency. Where necessary, reasonable and proportionate steps must be taken for any persons at risk, for example isolation or, in exceptional circumstances, transfer to another facility. Any such steps being contemplated should be measured against the nature and gravity of the crimes for which the individual in question has been convicted and any blanket position for the mass release of prisoners may be considered wholly disproportionate and unjust. No State acting reasonably would simply release en masse individuals convicted of such serious, violent and/or grave crimes without considering the associated risks. As such, measures need to be considered that take into account the safety and well-being of the general public and at the same time the fundamental right of a prisoner not to be detained in an environment that constitutes inhuman or degrading treatment or punishment, or even torture.
On 25 March 2020, the UN High Commissioner, Michelle Bachelet, noting the risk to detainees, called on governments to take urgent action to protect the health and safety of all persons in detention and other closed facilities.
On 27 March 2020, the Inter-Agency Standing Committee (IASC) issued interim guidance, developed by the Office of the High Commissioner for Human Rights and the World Health Organization, on COVID-19 with a focus on persons deprived of their liberty. It is clear that there is a need for such measures to be imposed on prisons the world over, to ensure that the safety and well-being of prisoners globally is protected during the COVID-19 pandemic.
There is increasing concern that conflict zones, such as Syria and Yemen, that have been devastated by conflict with growing numbers of casualties due to the rising humanitarian disaster, present a particular risk to the spread of the COVID-19 virus. In Syria, where there is credible evidence to demonstrate that Syrian and Russian forces have targeted hospitals and ad hoc medical facilities, the risk of large numbers of infected persons receiving no treatment is clear, particularly where there are tens of thousands in detention facilities. Yemen has been forced to contend with a devastating attack by the military might of Saudi Arabia and the United Arab Emirates, and has been ravaged by disease and starvation. An outbreak of COVID-19 would devastate an already fragile state. Bangladesh – a state in which the real number of infected persons is being suppressed by an autocratic regime – is host to more than a million refugees, many of whom are held in makeshift camps in Cox’s Bazaar, an area which is a tinderbox of human suffering.
The UN has warned that States should take measures that are strictly necessary in response to COVID-19 and should not use the pandemic to suppress human rights and fundamental freedoms. This is a careful balancing act in which there are no easy solutions. This is also something that is likely to be with us for some time and it will define our notion of security, sovereignty and fundamental rights. To paraphrase and apply to the present crisis the words of Lord Hoffman on the draconian measures adopted to target terrorism in the wake of 9/11, the real threat to the life of the nation comes not from the COVID-19 pandemic, but from disproportionate measures taken to suppress human rights and fundamental freedoms.