“You have the right to remain silent. Everything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
– The Miranda Rights –
Imagine you are arrested and sent to prison. Everything changes, doesn’t it? Regardless what you are accused of. Suddenly, you do not know what will happen next, your life is not in your hands anymore, but in those of judges, prison staff, the legal system around you. You are not sure about your rights any more. You may know “you have the right to an attorney”, but not much more. How can prison staff treat you, and how should they? For example, what if you fall ill while in prison? What about preventive health care? Even if you are sure you are being mistreated, you cannot simply “call the police” or “report it to the authorities” any more. The worst part, however, is not that prisoners are often unaware of their rights but it is that a clear regime for their status simply does not exist. Because, be it on a regional or global level, the system for prisoner’s rights is complex and fragmented between different initiatives and institutions.
To be fair, simple human rights ought to cover prisoner’s rights in general terms. The International Covenant on Civil and Political Rights (ICCPR, 1966) states the following: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. It also specifically mentions segregation of juveniles from adults as well as the importance of social rehabilitation. It is binding only for those countries having ratified the Covenant: currently 168 states have done so, including all states in the European region. However, review and monitoring mechanisms are ineffective and lack legal obligation. Even less countries are part of the more specific UN Convention against Torture, which specifically mentions the importance to train prison staff properly; rules, instructions, methods and practices must be regularly reviewed by the state parties, currently 158.
In relation to the rights of prisoners, keeping in mind the important percentage of detainees who are still awaiting trial, the right to an independent trial and to an impartial judge are enshrined in article 14 ICCPR and article 6 of the European Convention on Human Rights (ECHR, 1950).
“Okay,” you may think, “but surely there are specialised agencies that take care of prisoners and detainees?” But when looking at the specific treaty-making and institutional level of the UN, the fragmentation of the regime becomes even more flagrant. The United Nations Office on Drugs and Crime (UNODC) as the core institutional body incorporates a section on “prison reform and alternatives to imprisonment”, but no binding rules nor fundamentally innovative approaches have emanated from the body. Its services are facultative and offer knowledge sharing and recommendations at best.
A glimmer of hope persists though. UNODC has recently chaperoned the review of the so- called “UN Standard Minimum Rules for the Treatment of Prisoners”. While the original document covered a lot of diverse aspects as to the treatment of prisoners, it is also a very timid resolution, stating their relativity already in its preliminary observations as it authorises national deviations. A lot of room is left for loopholes, which makes the resolution a weak legal instrument. The revision of these rules, now called the “Mandela Rules”, feature several innovations such as a limitation on the use of solitary confinement and provide guidance on the use of searches with notably strict regulation of intrusive searches of prisoners. The Mandela Rules still need to be officially adopted by the UNGA by the end of this year.
As if this fragmentation were not enough yet to confuse anybody trying to make sense of this “regime”, civil society plays tries to play a role as well, with key actors such as Penal Reform International or the Institute for Criminal Policy Research making their voices heard, but their “legal” outputs only hold a recommendation status at best.
Now, just because global governance is fragmented, that does not automatically mean it is ineffective. In Political Science, the term “Regime Complex” is even accepted as describing a legitimate international system for a given issue area. A “good” Regime Complex is characterised by flexibility and adaptability, coherence and accountability, efficiency and sustainability. However, while the revision of the UN Standard Minimum Rules shows certain adaptability in the system, it is now far from coherent. Furthermore states are just as far from being accountable for their prison regulations. Indeed, the fragmentation of the international system has not made it more efficient, because no coherent legal mechanisms exist, and states remain largely unsanctioned for violations of basic respect for prisoners and their rights. The global regime is as a matter of fact completely unbinding, imprecise, and it is practically impossible to sue in an international court for violation of any of the guidelines mentioned because of their “soft” nature.
Is Europe doing any better than the rest of the world then? Let us note first that the predominant guidelines in Europe are the European Prison Rules, which were built on the basis of the UN Standard Minimum Rules. While both systems are characterised by vagueness and lack of legally binding mechanisms, the global regime is by far more intricate and complex than the European one: even though a unifying body is missing, the global framework incorporates numerous specific focus areas (such as Women Prisoners or Health in Prisons).
If the European approach is to fit into or improve upon the weak global “Regime Complex”, it ought to not only focus on important sub-issues, but more so on how to contribute in a meaningful way to the fragmented governance which persists for now. Can a European contribution make the regime more coherent? If that is indeed a goal worth pursuing, the key word is accountability: what is really lacking, be it on a global or European scale, is a definition of prisoner’s rights as part of imperative law, violations of which ought to be prosecutable in a court of law. Because the first step for prisoners to know their rights within the regime is to establish a proper regime in the first place.
Indeed, just because the prison population may (or may not!) have done something to land them where they are, basic rights still apply to every human being. The attorney is not the only right prisoners deserve. They have been forgotten often enough.