Prof. dott. Mchael Platzer e il prof. dott. Anton van Kalmthout
First of all I would like to thank the organizers of this conference, who enable me to speak here. The subject of my lecture today concerns vulnerable persons in prison. Actually all prisoners are vulnerable in one or other way.
Locking up human beings is after all in essence an unnatural activity, as freedom is the highest good persons possess. Depriving a person of this freedom has often far-reaching consequences. Not only in a mental and physical way, but also because it takes away a person's contacts with others, his or her social life, belief and look to the future.
Moreover, imprisonment does not only punish detainees themselves, but also their partner, children and friends. It is a sentence which for many is a lifetime punishment, also after their release. Frequently this punishment is also not the solution for the problems which underlie the deviant behavior.
Basically imprisonment is an irrational punishment, which in its effects causes more harm to detainees and society than offering solutions. This is why a constant search for alternatives, which are less harmful than deprivation of freedom is a good practice. Nevertheless, we should recognize that at the moment alternatives aren't or aren't sufficiently present. Therefore, imprisonment has to be accepted as a necessary tool for the maintenance of the legal order.
Acknowledging the necessity of imprisonment does not relieve us from the obligation to enforce this punishment in a humane manner as possible. With humane is meant, without injuring the human dignity, preservation of respect for the detainee and always focused on life after detention.
These principles of humanity, respect, minimal restrictions, rehabilitation and reintegration are currently laid down in numerous international and national human rights treaties, resolutions, constitutions and national legislations. Numbers of international governmental and non-governmental
organizations, such as also your organization ICCPPC make efforts for the implementation of these principles. The importance of these acts has to be emphasized, because legislation and human rights alone offer insufficient guarantee for actually complying with human rights in prisons.
Since a few years I am a representative of the Netherlands in the CPT, the Committee for the Prevention of Torture, Inhuman and Degrading Treatment of the Council of Europe. This organization is unique as it watches over human rights in all places where persons are deprived of their freedom, i.e. police cells, psychiatric institutions, prisons, houses of detention and detention centers for asylum seekers and irregular migrants. 49 countries of the Council of Europe are within the scope of the Committee. Via regular, ad-hoc and follow-up visits to the institutions in these countries the Committee monitors the living conditions of the detainees. National governments are bound to follow the Committee's recommendations. This is based on the European Convention on Human Rights and the special Convention against Torture, Inhuman and Degrading Treatment.
The Committee does also function as an important fact finding body for the European Court of Human Rights. Especially the good experiences with this European model of the CPT have inspired the UN to adopt the Optional Protocol to the Convention against Torture. Currently 34 countries have ratified this Protocol. Outside of Europe, a sub-committee against torture will enforce this Protocol in dose collaboration with the CPT. This is an important step forward in the international protection of human rights of detainees all over the world. You know from your own daily practice how much work stili has to be done in this area. This goes especially for the groups which are worldwide still considered to be as the most vulnerable.
The great Dutch jurist Hugo Grotius described already in the 1 7'h century women, juveniles and mental disabled persons as `personae miserabilis', who are in need of special protection of the law. In many areas this has not changed in the last 300 years, but their vulnerable position occurs particularly when they are deprived of their freedom. When this is the case, it is to be considered that women, juveniles and mental disabled persons are the most vulnerable ones. Nowadays a 4th category of persons can be added, namely: foreigners. The numbers of foreigners in prisons or prison like institutions have tremendously increased in the last decennia on a worldwide basis. This counts for foreigners who are detained on a criminal basis as well as for the numbers of asylum seekers and irregular migrants who are not welcome in the country where they have taken resort to. These people are treated as criminals or sometimes even worse and detained awaiting their removal.
What these 4 groups have in common is that the prison system in many countries is not or not sufficiently geared to the own kind, needs and specific needs of these groups. The prison system is traditionally based on repression, discipline and taken away ones own responsibility. It is a system of unequal relations with much physical and psychological pressure and clearly a by men cults dominated structure of norms and values. In particular women, juveniles, mental disabled detainees and foreigners are not able to resist against that. The result is a constant injury of the self-respect, self-image and dignity of these vulnerable persons. Then it is to the pastoral workers in prisons who have the unrewarding task of helping these persons to maintain or regain their self respect and not to lose their faith in a literally and figuratively sense.
I would like to make use oft his opportunity to make recommendations concerning a number of important subjects with regard to the detention of the 4 groups of vulnerable prisoners. These recommendations are based on the experiences of the CPT during the last 20 years. Taking into account the time which is reserved for me, I will restrict myself to the following themes: place and conditions of detention/staff and regime activities/medical care and safeguards.
Place and conditions of detention
It can not be stressed often enough that it belongs to the responsibility of the prison administration to take special precautions for the protection of vulnerable prisoners from all forms of abuse and sexual exploitation, to which these persons often fall unwanted victim to.
Juveniles - A look at the category of juveniles shows that accommodating them and unrelated adults together inevitably brings with it the possibility of domination and exploitation. For this reason, juveniles in detention should as a rule be accommodated separately from adults. The general requirement for separation of juveniles from adults is a principle enshrined in international treaty law, like the Convention on the Rights of the Child and the European Prison Rules. There are exceptional situations in which it can be accepted not to separate juveniles from particular adults, but this is only the case when it is plainly in the best interests of juveniles.
Besides separating juveniles from adults, it is also important that all juvenile prisoners, including those on remand, should be held in detention centers specifically designed for persons of this age. A well-designed juvenile detention centre will provide positive
and personalized conditions of detention for young inmates. Sleeping and living areas should be of an adequate size, well lit, ventilated, properly famished, well-decorated and offer appropriate visual stimuli. As far as there are no compelling security reasons to the contrary, juveniles should be allowed to keep a reasonable quantity of personal items.
Women - Another category of vulnerable persons in prison are women. In all European states women inmates represent a comparatively small minority of persons deprived of their liberty. This can render it very costly for States to make separate provision for women in custody, with the result that they are often held at a small number of locations, in premises which were originally designed for (and may be shared by) male detainees.
To prevent women from sexual harassment, including verbal abuse with sexual connotations uttered by men, particular care is required to ensure that women inmates are held in a safe and decent custodial environment. For this cause, they should be held in accommodation which is physically separate from that occupied by any men being held at the same establishment. Some States have begun to make arrangements for couples (botti of whom are deprived of their liberty) to be accommodated together, and/or for some degree of mixed gender association in prisons. Such progressive arrangements are welcomed, but only when the prisoners involved agree to participate, and are carefully selected and adequately supervised.
In the context of the conditions of detention, the specific hygiene needs of women should be addressed in an adequate manner. Ready access to sanitary and washing facilities safe disposal arrangements for blood-stained articles, as well as provision of hygiene items, such as sanitary towels and tampons, are of particular important for this group. According to the CPT, the failure to provide such basic necessities can amount, in itself, to degrading treatment.
Special care is in particular needed for pregnant women and if a mother and child are together in prison, they should be placed in conditions providing them with the equivalent of a crèche and get support of staff specialized in post-natal care and nursery nursing. Also arrangements should be made to ensure that children have adequate play and exercise facilities within the prison, and wherever possible, the opportunity to leave the establishment and experience ordinary life outside its walls.
Foreigners - With regard to the group of foreigners it is to be state that they experience numerous difficulties in prison. Although the concept of non-discrimination is used as a starting point in prisons, the practice shows a different and foreigners are often not able to exercise their formally equal rights. Foreign prisoners are in general excluded from placement in (semi) open penitentiary institutions with a more relaxed regime and (more) opportunities for work, education, re-integration programs and contact with the outside world. Main reasons for this discriminatory practice are the fear of escape and Jack of a secure home address.
The particular group of administratively detained foreigners are not imprisoned because they are convicted or suspected of a criminal offence, but solely on the ground of residing in a country without a valid residence permit. The majority of European countries accommodate these foreigners in special detention centers, but police stations, prisons, penitentiary institutions and transit zones are in use as well. A prison is by definition not a suitable place in which to detain someone who is neither convicted nor suspected of a criminal offence. In countries where these foreigners are placed in police stations and prisons, it even occurs that they are kept together with criminal offenders. This is a wrongful act, these persons should not be seen as criminals nor to be treated as one. For this reason, foreigners under aliens legislation should be detained separately from criminal detainees.
The reports of the CPT on European countries are mainly critical about the conditions under which foreigners are detained.
Points of critique are on the lack of medical care, overcrowding, access to legal aid and activities. In some countries, the treatment of irregular migrants is worse than that of prisoners who are detained on a criminal basis. Centers where these foreigners are accommodated should be adequately furnished clean and in a good state of repair, which should offer sufficient living space for the numbers involved. Further, care should be taken in the design and layout of the premises to avoid as far as possible any impression of a prison environment. Also the religious requirements and dietary habits of foreign nationals should be taken in fully account.
Mentally disabled detainees - Appropriate arrangements should also be made for the fast category of vulnerable prisoners, namely the group of (mental) disabled persons. For example, mentally handicapped and/or mentally disturbed adolescents should not be accommodated together with adult patients. It is also important to keep mentally-ili persons and oligophrenic behaviorally disturbed persons separate on close wards, so that ones aggressive behavior will not harm another.
The group of (mental) disabled detainees should be offered material conditions which are conducive to the treatment and welfare of them. A positive therapeutic environment should be created. Therefore is needed sufficient living space per person as well as adequate lighting, heating and ventilation, maintaining the establishment in a satisfactory state of repair and meeting hospital hygiene requirements. The provision of bedside tables and wardrobes is highly desirable, and patients should be allowed to keep certain personal belongings (photographs, books, etc.). It is also important that these persons be provided with lockable space in which they can keep their belongings; the failure to provide such a facility can impinge upon a patient's sense of security and autonomy.
The needs of elderly and/or handicapped patients in this respect should be given consideration; for example, lavatories of a design which do not allow the user to sit are not suitable for such persons. Similarly, basic hospital equipment enabling staff to provide adequate care (including personal hygiene) to bedridden patients must be made available; the absence of such equipment can lead to wretched conditions which do not allow the user to sit are not suitable for such persons. Similarly, basic hospital equipment enabling staff to provide adequate care (including personal hygiene) to bedridden patients must be made available; the absence of such equipment can lead to wretched conditions.
Staff and regime activities
It is essential for all four categories of vulnerable persons that a mixed gender staff is available. The presence of both male and female staff can have a beneficial effect in terms of both the custodial ethos and in fostering a degree of normality in a place of detention. Mixed gender staffing also allows for appropriate staff deployment when carrying out gender sensitive tasks, such as searches. In this respect, regardless of their age, inmates should only be searched by staff of the same gender and any search which requires an inmate to undress should be conducted out of the sight of custodial staff of the opposite gender.
The staff called upon to fulfill the task of custody and care of these categories of vulnerable persons should be carefully selected for their personal maturity and ability to cope with the challenges of working with and safeguarding the welfare of the particular group. All such staff, including those with purely custodial duties, should receive professional training, both during induction and on an ongoing basis and benefit from appropriate external support and supervision in the exercise of their duties.
With regard to the staff concerning the group of foreigners in particular it is important that they possess well-developed qualities in the field of interpersonal communication. Staff with a limited knowledge of foreign languages and no access to a cultural mediator/interpreter will inevitably be confronted with difficult situations, this is why it is important that the staff concerned should be familiarized with the different cultures of
the detainees and at least some of them should have relevant language skills. Further, they should be taught to recognize possible symptoms of stress reactions displayed by detained persons (whether post-traumatic or induced by socio-cultural changes) and to take appropriate action.
Besides the significance of a professional staff with regard to the groups of vulnerable persons, it is also important that there are activities organized in prison which the inmates can join and benefit from. As most prisoners spend the majority of their time inside a penal institution and often behind cells, it is in these circumstances essential for their physical and mental health that they are given an adequate time each day in the open air and are allowed to participate in sports and recreational activities. This way, the risks of long-term social maladjustment will be reduced, because
Juveniles although a lack of purposeful activity is detrimental for any prisoner, it is especially harmful for juveniles, who have a particular need for physical activity and intellectual stimulation. This is why authorities should do their utmost to ensure that all minors are able to spend a reasonable part of the day outside their cells engaged in purposeful activity of a varied nature every weekday, and if possible, at weekend. They should be offered a full program of education, sport, vocational training, recreation and other purposeful activities. Physical education should constitute an important part of that program. As a stated principle in the Beijing Rules every effort must be made to ensure that young females who are deprived of their liberty "by no means receive less care, protection, assistance, treatment and training than young male offenders". Their fair treatment has to be ensured.
Women - Like for young females also activities which are offered to women inmates should be on an equal footing to that of their male counterparts (work, training, education, sport etc.) All too often women inmates are being offered activities which have been deemed "appropriate" for them (such as sewing or handicrafts), whilst male prisoners are offered training of a far more vocational nature.
Foreigners – With respect to the group of foreign prisoners it is the task of the prison authorities to ensure that foreigner prisoners have equal access to work, education and training programs. Being engaged in useful and paid work is essential for prisoners and especially for foreign prisoners because they often do not receive financial support from outside the institution. Though, foreigners are by law not excluded from for example participation in classes or work, in practice they are often not able to attend due to communication difficulties. Providing classes for foreigners to become more acquainted with the national language or English can be beneficial for both prisoners and staff.
Access to health care is a basic right which applies to all human beings. Prison authorities are requested to provide medical care to sustain or improve the physical and mental state of prisoners. Medical care and treatment in penal institutions should be equal to that provided in the community and preferably there should
be a dose link between the public health service and the prison health service.
Juveniles - It is particularly important that the health care service offered to juveniles constitute an integrated part of a multidisciplinary (medico-psycho-social) program of care. This implies inter alia that there should be dose co-ordination between the work of an establishment's health care team (doctors, nurses, psychologists, etc.) and that of other professional (including social workers and teachers) who have regular contact with inmates. The goal should be to ensure that the health care delivered to juveniles deprived of their liberty forms part of a seamless web of support and therapy.
It is widely recognized that juveniles deprived of their liberty have a tendency to engage in risk-taking behavior, especially with respect to drugs (including alcohol) and sex. They are also particularly susceptible to affective disorders, including the behavioral disorder of self-harm and attempts to commit suicide. In consequence, the provision of health education relevant to young persons is an important element of a preventive health care programs.
Women - Insofar as women inmates are concerned, it should be ensured that health care is provided by medical practitioners and nurses who have specific training in women’s health issues, including in gynecology. Moreover, to the extent that preventive health care measures of particular relevance to women, such as screening for breast and cervical cancer, are available in the outside community, they should also be offered to women deprived of their liberty.
Foreigners - The group of foreigners should receive the same kind of medical care as national prisoners, even though they might not have a health insurance. It is important to carry out systematic and individual medical examinations on all new arrivals and preparing medical files, not only to ensure that everyone received appropriate medical attention but also from the point-of-view of public health.
0ften interpreter assistance is requested from non-medical staff or other prisoners for language difficulties. This seems to be practical but is not desired because of medical confidentiality and the quality of the transition of medical terminology. An interpreter-telephone service should be made available for the medical staff.
Information sheets on medical issues should be made available in different languages and medical staff should have forcipes language competences. Particular attention should be paid to the physical and psychological state of asylum seekers, some of whom may have been tortured or otherwise ill-treated in the countries from which they have come.
(Mental) disabled prisoners - With regard to the category of mental disabled prisoners psychiatric treatment should be based on an individualized approach, which implies the drawing up of a treatment plan for each patient indicating the goals of treatment, the therapeutic means used and the staff member responsible. The treatment plan should also contain the outcome of a regular review of the patient' s mental health condition and a review of the patient' s medication.
During the period immediately following deprivation of liberty the risk of torture and ill-treatment is at its greatest. It is essential that ali persons deprived of their liberty enjoy as from. the moment when they are first obliged to remain with the polite the rights to notify a relative or another third party of the fact of their detention, the right of access to a lawyer and the right of access to a doctor.
Juveniles/foreigners - For juveniles the option `not to inform the family' should not exist. They should not be making any statements or sign documents related to the offence of which they are suspected without the benefit of a lawyer or trusted person being present and assisting the juvenile. For this age group especially, the information foray has to be easy to understand and available in a variety of languages. This last point is also applicable on detained foreigners. They should be expressly informed, without delay and in a language they understand, of all their rights and the procedure applicable to them. To this end, all foreign detainees should be systematically provided with a document setting out this information; the document should be available in the languages most commonly spoken by those concerned and, if necessary, the services of an interpreter should be made available. The persons concerned should attest that they have been informed of their rights, in a language they can understand.
Furthermore, steps have to be taken to ensure that foreign nationals, also the ones who are administratively detained benefit from an effective legal remedy enabling him to have the lawfulness of his detention decided speedily before a judicial body. This judicial review should entail an oral hearing with legal assistance and interpretation, if necessary provided free of charge to the person concerned. Moreover, detained foreign nationals should be expressly informed of this legal remedy.
Mental disabled prisoners - With regard to safeguards in the context of involuntarily placement of persons with mental disabilities authorities should take steps to ensure that residents who are placed in a social welfare home on an involuntary basis by court decision have the right to be heard in person during placement/appeal procedures; the resident concerned should be notify ed in writing of decisions on involuntary placement in a social welfare home, informed about the reasons for the decision and the avenues/deadlines for lodging an appeal. Residents and/or their guardian should also be able to request at reasonable intervals that the necessity for placement can be considered by a judicial authority.
In the preceding I asked attention for some essential aspects, which are important for a humane and respectful treatment of vulnerable detainees. However, it is not only about quality improvement of the regime and respect and maintenance of human rights. Also attention has to be paid and open eyes and ears are needed for what cannot be expressed in rules and basic rights. The pastoral workers in prisons are the persons who can build up bonds with inmates based on trust. These workers do not see detainees from the perspective of the elimination, the delinquent, they look through this.
What pastoral workers see and hear is a vulnerable human being, with his or her tragedies, broken pasts and personal struggling. In the tradition and foundation of pastoral workers, regardless of which denomination, have the task to give attention, help and comfort to especially the weakest and most vulnerable fellow human beings, irrespective of origin, age, gender, culture or offence. Besides the individual pastoral care which is being offered, also an active attitude can be expected from pastoral workers when it concerns observing, criticizing and challenging the injustice which to this day takes place. If Christ can be named the champion of human rights from 2000 years ago, it can be count on pastoral workers in prisons to carry on in the same spirit with the fight for justice and humanity. With this I wish you a lot of wisdom, strength, belief and persistence.