Authorities’ responsibility to prevent torture
The security and safety of detainees fall under the detaining authorities’ responsibility. Given the significant restrictions on the rights of detainees, and because they are confined in enclosed spaces, the authorities must remain vigilant in order to avoid detainees becoming victims of violence by other inmates, whether it be verbal, psychological or physical.
The authorities can delegate certain minor tasks to prisoners in order to encourage accountability and especially rehabilitation. These tasks might be recreational, social or cultural activities but must always be supervised by a facility officer. Supervision and disciplinary measures must never be delegated to other detainees (see below “Systems of Self-Governance”).
A certain degree of violence, due to the deprivation of liberty itself, as well as the accompanying tension and frustrations, exists in all closed environments. Some particular risk factors, however, increase the possibility of violent acts among detainees:
Overcrowding is one of the main reasons that results in an high degree of violence in prisons. Not only does overcrowding mean that detainees do not have enough personal space which leads to a rise in tensions but it also limits access to services, training and recreational activities. The detainees are therefore left to fend for themselves more with less oversight by the authorities and in conditions of heightened tension. The inadequate ratio between personnel and detainees, which generally results from situations of overcrowding, makes for less supervision and creates a situation of insecurity for the most vulnerable detainees.
Corruption is a factor that fosters violence within prisons: not only does it send a sign that illicit behaviour is tolerated but mostly it generates a parallel system of circulating goods, privileges and punishments whether it be with the authorities’ tacit approval or with its direct participation. Corruption and the absence of control over goods and merchandise available in prison also fosters the circulation of dangerous and forbidden goods such as weapons or drugs endangering the safety of detainees. Corruption is also reflected in the «sale» of space, beds or protection: The most deprived risk sleeping on the ground or being mistreated due to a lack of financial means to ensure their protection.
Violence among prisoners can be, in the worst situations, directly encouraged when facility staff allows abusive behaviour or ill treatment of detainees to take place, which leads to an atmosphere of impunity and lawlessness. However, there can also be a tolerance for violence when detaining authorities and staff are not able, for lack of training or because they are too few in number, to perform due diligence and ensure that no prisoner is a victim of acts of violence by other inmates. The selection and training of detention agents, including in conflict management, is therefore essential. When the selection process is flawed and training is inadequate, staff may become a contributing factor to the development of violence within institutions.
Penitentiaries and prisons should always be under the responsibility of civilian authorities (the Ministry of Justice or its equivalent). Prisons under military or police authority are more likely to be more authoritarian and there is a higher likelihood of violence among detainees.
Risk areas in prisons
In establishments where violence is endemic, all areas within the prison can be dangerous for detainees. Certain spaces are however particularly conducive to the development of violence. It is the same for establishments considered as safe where certain zones lacking direct and/or regular control can prove to be dangerous especially for the most vulnerable detainees.
Collective cells, and even more so communal dormitories, are conducive to the development of violence amongst detainees. This can be due to living in such close proximity and tensions arising from such a situation, but it can also be intentional and directed at a specific detainee who is at the mercy of the others. This type of violence can be of a sexual nature and can be inflicted on the basis of discriminatory reasons.
The exercise yard is an area where the risk of violence is particularly high. The yard can prove to be a place where racketeering, threats, trafficking and violence take place. For this reason, telephones should not be placed in prison yards. Staff should never rely solely on video-surveillance or surveillance from lookouts nearby but should be physically present in the courtyard and in sufficient numbers. The number of people who refuse to go out into the courtyard is an important indicator of what life is like within the establishment.
Communal showers are typically one site where violence against inmates may occur. The most vulnerable detainees can be subjected to humiliation, physical and/or sexual violence, including rape.
Any other communal space where supervision is reduced, such as workshops, social-cultural activities, dining halls etc.…can also be areas where violence among detainees might occur.
Systems of self-governance or “shared management” can be defined by the authorities’ delegation of power to certain detainees or groups of detainees. Depending on the situation, this transfer of powers can range from self-organisation within a dormitory to total control of the prison by certain detainees, including disciplinary measures, with the authorities only controlling the outer perimeter of the prison. Such a system of extreme self-governance is synonymous with being arbitrary and violent for the detainees held there.
If some social, educational or sporting activities or responsibilities may be entrusted to certain detainees then the selection process of detainees given these responsibilities plays an essential role. Are the detainees’ representatives elected the wealthiest, most powerful ones or are they elected democratically? Even when detainees are chosen in a democratic and transparent manner as representatives of the overall interests of the prison population, it is possible that the interests of some minority groups is not sufficiently taken into account.
If an almost total self-governance of prisons is limited to some isolated contexts, a certain degree of delegation of powers to specific detainees exists in the majority of systems. Whether power is delegated to gang leaders, mafia bosses or to people with special influence, in all cases the result would be arbitrary with more injustice and violence for detainees.
Systems of self-governance are generally characterised by the absence of medical care and services, the application of unfair and arbitrary sanctions, extortion (of inmates and/or their relatives), mental and physical violence as well as rape. The risks are even greater due to the fact that the «heads» of gangs can be rivals and provoke violent fights. Detainees who are from a minority, for reasons of ethnicity, nationality, age and sexual orientation etc., find themselves in situations of extreme vulnerability in prisons characterised by self-governance.
Structural and systematic measures help reduce the risk of violence among inmates. In the long term, national policies should aim for individual cells for the night for the entire prison population in order to preserve detainees’ safety when supervision is reduced.
Detainees should always be separated by category. Women must always be separated from men, adults from children, detainees who have been sentenced from those who haven’t yet been tried. Failure to comply with the principle of separation leads to an increase in the risk of violence, notably because of the vulnerability of certain categories of detainees. Separation of gang members can also help limit the risk of violence among inmates. Similarly, prisoners should be separated by detention regimes, from closed to semi-open, according to the types offences committed, of behaviour in detention and dangerousness. Failure to comply with this classification leads to an increased risk of violence.
Upon admission detainees should be subjected to an assessment of their needs and risks that they might encounter or represent for someone else. This assessment ensures that they are placed in the appropriate wing/ section and helps reduce the risk of tension and violence. Particular attention must be paid to the most vulnerable detainees. Such an analysis must not only be done upon admission but on a regular basis for the entire duration of their detention.
Staff should be trained in the principles and workings of dynamic security, which consists in implementing a relationship based on trust and respect between detainees and staff, identifying and de-escalating conflicts before they break out and favouring mediation as a form of management and conflict prevention, as well as identifying the most vulnerable detainees.
Complaint mechanisms and early warning systems must be made available to detainees. These mechanisms must be reactive, transparent and accessible and must be trusted by those involved. Steps must also be taken to prevent any form of retaliation against individuals resorting to this type of mechanism. If necessary, impartial investigations must be conducted and perpetrators of violence against fellow inmates must be prosecuted and punished if need be.
Detainees should also have access to inspection and monitoring bodies and be able to relate the violence they have suffered. Both inspection and monitoring bodies must do everything to protect victims of violence against any form of retaliation.
Groups in situations of vulnerability
Minors are particularly exposed to risks of violence, especially in the form of bullying by their cellmates, and can be more prone to trying to manage their conflicts with the use of force. Minors in detention are also exposed to the risk of gang involvement or pressure from other groups. Obtaining information about whether a detainee identifies with a particular group when he/she is transferred to the facility may allow placement in an institution or wing/ section of an establishment that would terminate involvement in a particular group. For these reasons, it is absolutely essential that children be detained separately from adults at all times.
Persons living with physical or mental disabilities are at high risk of abuse and violence by their fellow inmates, especially if their disability results in decreased physical or intellectual capacities. They are also at higher risk of sexual abuse, including rape. The authorities have a positive responsibility to ensure their protection and make accommodations that would help reduce risks, including placement in sections for vulnerable detainees. However, this should not completely isolate them from the rest of the prison population.
LGBTI persons are extremely vulnerable to the risk of abuse by their fellow inmates. Often marginalised in prison, where macho attitudes are predominant, LGBTI individuals may be subject to humiliation, extortion, psychological and physical abuse, and rape, particularly in areas where detention staff is low, such as dormitories, showers or during walks in the yard. The authorities have a responsibility to ensure the protection of LGBTI persons and to take adequate steps to do so. Such measures may include placement in areas of the prison for vulnerable detainees, without this resulting in total isolation or reinforcing stigmatisation, and with the informed consent of the persons concerned.
Foreign detainees and detainees belonging to minorities or indigenous peoples are more exposed to the risk of humiliation and violence by their fellow inmates. They may become victims of violence because of their difference, whether it is their minority status, ethnicity, religion, skin colour, etc. To reduce the risk of violence, authorities may have to place detainees according to their nationality or ethnicity. Such measures should not be taken for discriminatory reasons, or against the will of the detainee concerned, and should not be done systematically.
Female detainees face the risk of being victims of violence committed by their fellow inmates. Prior to being incarcerated they are often victims of domestic violence and sometimes belong to a gang. In detention they often find themselves in a situation of acute vulnerability. The most vulnerable among them are likely to be persecuted and exploited, including sexually, by fellow inmates. Staff working in female facilities must be properly trained and able to identify the most vulnerable detainees and provide adequate protection.
Legal standards (5) Print
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
1. Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself or herself. If for special reasons, such as temporary overcrowding, it becomes necessary for the central prison administration to make an exception to this rule, it is not desirable to have two prisoners in a cell or room.
2. Where dormitories are used, they shall be occupied by prisoners carefully selected as being suitable to associate with one another in those conditions. There shall be regular supervision by night, in keeping with the nature of the prison.
1. No prisoner shall be employed, in the service of the prison, in any disciplinary capacity.
2. This rule shall not, however, impede the proper functioning of systems based on self-government, under which specified social, educational or sports activities or responsibilities are entrusted, under supervision, to prisoners who are formed into groups for the purposes of treatment.
United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)
Clear policies and regulations on the conduct of prison staff aimed at providing maximum protection for women prisoners from any gender-based physical or verbal violence, abuse and sexual harassment shall be developed and implemented.
11th General report [CPT/Inf (2001) 16]
The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm. In fact, violent incidents among prisoners are a regular occurrence in all prison systems; they involve a wide range of phenomena, from subtle forms of harassment to unconcealed intimidation and serious physical attacks.
European Prison Rules
As soon as possible after admission, prisoners shall be assessed to determine whether they pose a safety risk to other prisoners, prison staff or other persons working in or visiting prison or whether they are likely to harm themselves.
Procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety.
Every possible effort shall be made to allow all prisoners to take a full part in daily activities in safety.
It shall be possible for prisoners to contact staff at all times, including during the night.
National health and safety laws shall be observed in prisons.
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas
Principle XXIII - 1. Preventive measures
In accordance with international human rights law, appropriate and effective measures shall be adopted to prevent violence amongst persons deprived of liberty, or between persons deprived of liberty and the personnel.
In order to achieve that, the following measures shall be taken, amongst others:
a. Separate the different categories of persons deprived of liberty in conformity with the criteria set down in the present document;
b. Provide periodic and appropriate instruction and training for the personnel;
c. Increase the number of personnel in charge of internal security and surveillance, and set up continuous internal surveillance patterns;
d. Effectively prevent the presence of weapons, drugs, alcohol, and other substances and objects forbidden by law, by means of regular searches and inspections, and by using technological and other appropriate methods, including searches to personnel;
e. Set up early warning mechanisms to prevent crises or emergencies;
f. Promote mediation and the peaceful resolution of internal conflicts;
g. Prevent and combat all types of abuse of authority and corruption;
h. Eradicate impunity by investigating and punishing all acts of violence and corruption in accordance with the law.
Questions for monitors (15) Print
Is there a system of delegation of tasks to some detainees? If this is the case, which tasks are these and how are the detainees who are responsible for carrying them out chosen?
What is the detainee to staff ratio?
Is the principle of separation of detainees respected? What are the criteria used for separation?
Does the training of staff include courses on conflict management and dynamic security?
Is there an assessment of risks and individual needs done upon admission? Does such an assessment facilitate managing the placement of detainees within the establishment? Is the assessment carried out on a regular basis after admission
Are there effective complaints mechanisms in place for detainees that have been subjected to violence? Are these mechanisms used?
What are the least safe places within the establishment? Are measures taken to make these places safer?
Do some detainees refuse to go on walks? If this is the case, what reasons are given?
How is access to showers organised? Do the guards monitor the showers?
Are measures taken to avoid bullying or other forms of violence on detained minors? What are the criteria that would allow for children to be sent to the establishment?
Are accomodations made to protect detainees that are living with a physical or mental disability against violence committed by other detainees?
What measures have been taken to protect LGBTI detainees against violent acts committed by other detainees? Have these measures contributed to indirectly reinforce their stigmatisation?
Are some ethnic minorities, nationalities, or indigenous people more exposed to the risk of violent acts committed by co-detainees? Have measures been taken to reduce these risks?
Are women systematically separated from men? Are there any signs of violence, including sexual violence, committed by co-detainees? Have measures been taken to reduce the risks?
Do current rules include the protection from physical or verbal violence towards detainees, including sexual harassment perpetrated by co-detainees?