#OPCAT

COVID-19: Should I Stay Or Should I Go Now?

This troublesome question of whether to stay or to go is one not just to afflict a famous English punk rock band some four decades ago. Rather, it is one today to rack the human rights hearts and minds of detention oversight mechanisms from all over – in this new, but far less brave COVID-19 world of ours.

Boiled down, the burdensome decision to be reached is whether inspection bodies, OPCAT mechanisms or not, should continue to exercise their core detention visiting function in the wake of the current, seemingly quickly deteriorating global health pandemic? At first blush, the general answer to this quandary, while certainly far from clear, appears to be a somewhat reluctant not – at least not physically.

Wash Your Hands (COVID-19 Self-Protection Advice – William Murphy (2020).

Less than a week ago, the Canadian Correctional Investigator, Dr. Ivan Zinger, marked out the monitoring position of his institution in the following statement issued in English and French:

The Correctional Service of Canada (CSC) has implemented exceptional COVID-19 measures that will affect routines and conditions of confinement in Canada’s federal penitentiaries, including suspension of all visits until further notice.  At this time, though regular and scheduled institutional visits from OCI staff members have also been temporarily suspended and most staff are working remotely from home, as an external independent oversight body the Office of the Correctional Investigator will maintain an essential level of services and operations, including regular situational monitoring… As the situation evolves, the Office will consider making emergency institutional visits on a case-by-case basis, taking into consideration directions from health authorities.”

This position appears to strike a crucial balance between doing no harm, keeping a close eye on the current, fast-moving situation, and reserving the ultimate right to knock hard on any institutional door, if needs must. The emerging global practice suggests that the Canadian Correctional Investigator may not be alone in adopting such a stance.

Elsewhere in Canada the situation is less clear. While on one hand, the Ombudsman Ontario is working remotely and liaising with the detaining authorities from afar, the approach of the country’s other provincial and territorial ombuds-type bodies is ambiguous.

Flower Stream – Rennett Stowe (2020).

For the most part, the country’s patchwork system of ombudsperson institutions have issued statements, informing the public that they have closed their doors with a view to limiting face-to-face contact with the masses and/or are working remotely. Unlike, the Office of the Correctional Investigator, however, no detailed information is generally provided about the modalities of any interaction with the detaining authorities over which they have an oversight function.

Ideally, one would hope that a similar approach to the Correctional Investigator has been adopted, but in the absence of specific information this assumption is far from certain. The Office of the Human Rights Commissioner of British Columbia, for example, has simply stated that its employees are working remotely until 30 April 2020.

Similar missives have been posted on the websites of the Le Protecteur du Citoyen Quebec, Alberta Ombudsman, Ombudsman Saskatchewan, Manitoba Ombudsman, Ombud New-Brunswick, Nova Scotia Office of the Ombudsman, and the Office of the Northwest Territories Ombud. Somewhat surprisingly, a small minority of ombuds-institutions currently have no COVID-19 operational-related information on their websites.

Prison Tower – Jobs For Felons Hub (2016).

International practice

Despite putting on hold its own programme of international visits, the UN Subcommittee on Prevention of Torture (SPT) has encouraged National Preventive Mechanisms under the OPCAT to continue to exercise their preventive visits function. In key guidance issued this past week, the SPT stated the following:

“Numerous NPMs have asked the SPT for further advice regarding their response to this situation. Naturally, as autonomous bodies, NPMs are free to determine how best to respond to the challenges posed by the pandemic within their respective jurisdictions.” [6]

Even so, the SPT underscored the fundamental importance of conducting visits to all places of deprivation of liberty as broadly defined by the OPCAT:

“The SPT would emphasise that whilst the manner in which preventive visiting is conducted will almost certainly be affected by necessary measures taken in the interests of public health, this does not mean that preventive visiting should cease. On the contrary, the potential exposure to the risk of ill-treatment faced by those in places of detention may be heightened as a consequence of such public health measures taken. The SPT considers that NPMs should continue to undertake visits of a preventive nature, respecting necessary limitations on the manner in which their visits are undertaken. It is particularly important at this time that NPMs ensure that effective measures are taken to reduce the possibility of detainees suffering forms of inhuman and degrading treatment as a result of the very real pressures which detention systems and those responsible for them now face.” [7]

This position has been echoed by other authoritative international bodies, including just last week by the European Committee for the Prevention of Torture. The World Health Organization also chimed this same key point in a recent publication, as discussed on this website.

Prison Riot Squad – Jobs For Felons Hub (2016).

National-level developments

At the national level, detention monitoring practice in the light of the spiraling global COVID-19 crisis appears to be more of a mixed picture.

Fairly early on into the crisis, on 16 March 2020, the French NPM, the Le Contrôleur général des lieux de privation de liberté announced its suspension of visits. Similarly, across la Manche, the next day Her Majesty’s Inspector of Prisons in England and Wales Peter Clarke stated that the mechanism had postponed future visits for nearly two-and-a-half months. The published statement read:

Peter Clarke, HM Chief Inspector of Prisons, has announced that all scheduled inspection work involving visits to prisons or other places of State detention in England and Wales has been suspended up to the end of May 2020. This will affect around 15 full inspections, independent reviews of progress and visits as part of thematic inspection work. This decision will be kept constantly under review in the light of COVID-19-related developments.”

Not too long afterwards, on 25 March, the Swiss NPM, the National Commission for the Prevention of Torture followed suite in a letter addressed to the prison and health authorities, ostensibly so as not to overburden the prison authorities.

In Scotland, Her Majesty’s Chief Inspector of Prisons for Scotland, Wendy Sinclair-Gieben, also announced a suspension of all such visits. However, in a statement issued on 31 March the Chief Inspector reaffirmed that the institution was committed “… where possible, to undertake a liaison visit to any prison establishment where we believe the urgency to visit outweighs our precautions related to COVID-19.”

The above position was not entirely dissimilar to the stance adopted by the Canadian Correctional Investigator.

COVID-19 notice – Iain Cameron (2020).

These bodies (all of which are part of the UK NPM) are not alone. Dame Anne Owers, the National Chair of the Independent Monitoring Boards, the lay-visitor prison and immigration detention monitoring scheme in England and Wales, issued a statement on 30 March, marking out a similar position:

“Boards will be able to carry out some limited on-site work where it is safe and feasible to do so. However, we have also developed remote methods of providing some independent assurance at a time of heightened concern for prisoners and detainees.”

Staying in Albion for a moment longer, the overall UK NPM Chair, John Wadham, wrote to Secretary of State Robert Buckland the same day stating the following:

Firstly, NPM members are developing risk criteria that allow them to respond to allegations or concerns about potential ill treatment that warrant some kind of visit to be conducted. In most situations, these visits would be carried out by one or two people and follow a much more targeted methodology than normal inspections/monitoring visits. Secondly, NPM members are developing new approaches to remote forms of monitoring. Given the rapidly changing picture across different detention settings and the severity of the measures that are being imposed (restriction of family visits, long periods of isolation, limitations on exercise and association), NPM members are looking into how they can monitor the situation using data from a range of sources, including from detention authorities themselves, via phone lines and correspondence, and from wider stakeholders.”

Just to add further colour to the palette, Katie Kempen, the Chief Executive of the Independent Custody Visiting Association, the organizational entity supporting the lay-person police visiting scheme in the UK (which is also part of the country’s 21-body NPM), stated on 25 March that such visits could continue. Volunteer independent custody visitors deemed high-risk (due to their age or health) would be exempt from such activities. However, she stressed that remote monitoring possibilities were also being considered.

In sum, a range of options seem to be on the table in the United Kingdom.

It bears noting that the Canadian Correctional Investigator and the UK NPM’s use of a range of options (some remote, some not) to monitor closed settings mirror-image the key advice advanced by the UN Subcommittee on Prevention of Torture in last week’s guidance document (please see paragraphs 12 and 13).

Quarantine-related powers

As an interesting aside (at least we think so), at least two NPMs have issued statements, stressing that, despite any public emergency measures, they retain the power to access any compulsorily quarantined individuals and/or related detention facilities.

The Public Defender of Georgia issued a statement on 17 March, noting that her office would consider monitoring facilities or persons who had been quarantined, provided that certain conditions were met, such as the safety of the monitoring team and non-interference with healthcare provision were ensured.

Across the border in Armenia, likewise the Human Rights Defender of Armenia reaffirmed in no uncertain terms in a FAQ document published on 27 March that it cannot be prevented from exercising its monitoring activities during the present state of emergency in the country, remarking:

“Restrictions enforced in the declared state of emergency cannot hinder the activity of the Human Rights Defender. The right to apply to Human Rights Defender is of absolute character and is not subject to restriction in state of emergency.”

Whether the two NPMs in question will actively opt to exercise their stated rights to visit quarantined individuals in places of deprivation of liberty remains to be seen – as the situation unfolds.

Prison Fence Barbed Wire – Jobs For Felons Hub (2016).

In conclusion: staying or going?

As for other detention monitoring entities, concrete information about whether such bodies – to quote our favourite English punk rock band – have decided to stay or to go is somewhat scant.

A random scan of the websites of a range of different inspection mechanisms revealed little concrete information in this connection, including those of the Commissioner for Human Rights in Ukraine, Commissioner for Human Rights in Kazakhstan and the Office of the Inspector of Prisons in Ireland, which remains altogether silent on the issue of COVID-19.

At the time of writing, no information about the curtailment of visits had been posted on the respective websites of the Austrian and German NPMs, the Austrian Ombudsman Board and the National Agency for the Prevention of Torture.

In Moldova, the People’s Advocate (comprising an important element of the country’s NPM) has created a section on its website for the purpose of monitoring human rights violations during the present health crisis. A press release issued on 30 March strongly suggested that the mechanism would be handling any such complaints remotely and would be liaising from a distance with the relevant government agencies. While no direct mention was made of the suspension of visits, one might conclude from the above that this has been in fact the case.

With 71 designated NPMs in the world and numerous other detention oversight mechanisms, the reader will appreciate why this – wholly unintended – mini-research project on the part of the Canada OPCAT Project very quickly ran out of steam. And to think, we barely left Europe!

Thankfully help has come to the rescue in the shape of a recent research initiative by the Expert Network on External Prison Oversight and Human Rights. The latter has arrived at a very timely moment.

The Network, which is hosted by the Independent Corrections and Prisons Association and chaired by the Canadian Correctional Investigator, is aiming to compile information about the impact of COVID-19 on the work of detention monitoring bodies, including the measures taken to respond to this crisis as well as any related lessons learned. The findings of the research, to be shared in future newsletters, will be very revealing of how NPMs and other bodies are adapting to the quickly changing COVID-19 circumstances.

The research will thus no doubt shine a brighter light on the pressing question of how such bodies are continuing to exercise their all-important preventive visiting function in the light of the present-day conditions. Better still, there might even be a PhD in all of this for someone one day…

Thanks for your time, dear readers.


Read the latest newsletter of the Expert Network on External Prison Oversight and Human Rights and learn how to contribute to its COVID-19 monitoring-related research.

See the document, Advice of the Subcommittee on Prevention of Torture to States Parties and National Preventive Mechanisms relating to the Coronavirus Pandemic.

Read the CPT’s Statement of Principles relating to the treatment of persons deprived of their liberty in the context of the coronavirus disease (COVID-19) pandemic in EnglishFrench or Russian.

Consult Penal Reform International’s publication, Coronavirus: Healthcare and human rights of people in prison.

Read the WHO publication, Preparedness, prevention and control of COVID-19 in prisons and other places of detention.

Posted by mp in COVID-19, Independent detention monitors, NPMs, OPCAT