In prisons, recourse to force must always be the exception and it must always be used as a last resort. There are only three strictly defined situations which may justify the use of force:
1) In the case of legitimate self-defence, when there is an immediate threat of physical violence to a member of the prison staff, a co-detainee or a third party;
2) in the case of an attempted escape;
3) in the case of a detainee refusing to comply with a lawful order, and always as a last resort.
To prevent any abuse, recourse to force must respect the principles of legality, necessity and proportionality. Monitoring procedures must also be put in place, and those responsible for abuse must be held accountable.
Prison staff and any others responsible for maintaining order who can intervene in prison, such as special forces who can be called in when there is a mutiny or other serious incidents, must be duly trained in the risks related to resorting to force and in the legal framework that allows them to intervene.
Conditions for resorting to force
The use of force in penal establishments must be strictly regulated and can only be justified in the following situations:
Legitimate self-defence: situations in which a member of the prison staff, or a co-detainee or any other person within the establishment is threatened with physical violence.
Attempted escape: in this case, force may only be used if the attempted escape is in progress, or on the point of being carried out. A hypothetical risk of evasion cannot justify the use of force.
Refusal to comply with a lawful order: such a refusal can manifest itself actively, that is, by acts of verbal or physical violence towards the prison staff. The refusal may also occur passively, such as the refusal of detainees to leave or to return to their cell.
The use of force includes different methods and techniques, from physical restraint to the use of weapons, lethal or non-lethal. The type of force used must therefore depend on the situation and the prison staff or other people responsible for the maintenance of order must be trained to adapt the type of force used on a case by case basis. There are three main methods of the use of force:
The physical action of restraining a person, sometimes by several people, in order to immobilise him/her: Immobilisation techniques must be duly authorised and not physically endanger detainees. Even though this method is the least likely to endanger someone’s life, it may only be used for the reasons and within the situations mentioned above (legitimate self-defence; to prevent escape; refusal to comply with a lawful order, and as a last resort).
The use of non-lethal weapons, such as truncheons, non-lethal ammunition weapons (rubber balls) or electrical discharge weapons: These weapons may only be used where other methods have failed and if the person is showing violent behaviour likely to cause serious injury or the death of a third person. Refusal to comply with an order can never justify recourse to a weapon, lethal or not.
The use of lethal weapons, such as guns or rifles. Recourse to lethal weapons must be even more strictly regulated than all the other methods: their use must be forbidden within the prison, except when their use is considered totally unavoidable to protect someone’s life. These types of weapons must be limited to surveillance of the external perimeter and staff may only deploy them where there is a risk of serious injury or death or when an escape of a violent nature is actually in progress and no other means can be used.
The principles of legality, necessity and proportionality provide a framework to every aspect of the use of force, including methods, intensity and duration.
The principle of proportionality
The use of force must always be proportional to the threat. In assessing the situation, the authorities must balance the seriousness of the threat against the methods of intervention. This type of assessment must also take account of the profile of the person (age, gender, and state of health) and the possible physical and psychological consequences related to the use of force against the person concerned. Based on this assessment the authorities must decide on the type of intervention, knowing that force may only be exerted for the shortest possible duration.
As the use of force must be the last resort in every situation, the peaceful resolution of conflicts, negotiation and verbal orders must always be used before considering resorting to force.
The principle of legality
In order to regulate recourse to force, the conditions and methods made available to the staff must be provided for in law and meet the peremptory norms of international law.
The law must first identify, in a comprehensive manner, the situations that may lead the authorities to resort to force. This list must be understood as forbidding any recourse to force apart from in the situations identified.
The law must also specify the forms of force to be used: methods of physical restraint, non-lethal weapons and lethal weapons. The law must also specify which method(s) may be used in which situation(s).
The law must indicate the internal decision-making procedures leading to recourse to force: assessment of the situation, prior authorisation and subsequent monitoring and finally the recording in a register of all actual instances of recourse to force.
Finally, the law must lay down the disciplinary and criminal sanctions for cases of abusive, arbitrary or excessive use of force.
The principle of necessity
The use of force must only be possible in three clearly identified situations (legitimate self-defence, escape, refusal to comply with a lawful order). The principle of necessity also means that force must be used only in exceptional cases and that it must be limited to the most serious situations.
The use of force may lead to serious physical and psychological harm of the person concerned. The injuries and suffering caused, whether physical or psychological, may constitute cruel, inhumane or degrading treatment or even torture, especially if the principles of legality, necessity and proportionality are not respected.
In the most serious situations, the use of force may lead to the death of the person concerned. Death may result from an excessive and/or inappropriate use of force. Indeed, the use of non-lethal weapons, such as an electrical discharge weapon, may lead to the death of the person if they are used in an excessive manner or if they are used on a person in a poor state of health. Certain types of immobilisation or physical restraint may also cause death, in particular by asphyxia.
In case of death, a criminal investigation must be opened to establish the exact circumstances of the person’s death. An autopsy must be carried out to provide a precise account of the injuries and an objective analysis of the clinical findings, including the cause of death.
The use of force on detainees who are minors is restricted to a few exceptional situations and must be strictly regulated. The use of force must never lead to the humiliation of detainees who are minors and staff must only use it for the shortest possible time and on the orders of the prison governor. The only situations that can lead to a legitimate use of force on these detainees are, as a last resort, the prevention of serious acts of self-harm, the prevention of physical harm to others, or of serious damage to property. In all these situations, the governor must consult a doctor as a matter of urgency and provide a report to the higher administrative authority. The carrying and use of weapons must be forbidden in any establishment that houses detainees who are minors.
Any use of force on people who are physically or mentally disabled must be strictly regulated. With detainees who have a physical disability, the use of force must be proportional to the risk incurred and take into account the limitations imposed on the person by their disability. Force should never be used on people suffering from mental problems or disabilities, and must always be used as a last resort. The use of force on these detainees risks not only escalating the violence of the situation, but also aggravating the medical condition of the detainees.
The training of prison staff concerning the use of force is of great importance in the prevention of abuse. Such training must focus on the respect for the principles of legality, necessity and proportionality not only in theory but also in their practical application. Training must also teach staff techniques of de-escalation to prevent conflict, as well as immobilisation techniques and the handling of lethal and non-lethal weapons. It is important for basic training to be enhanced by ongoing training provided at regular intervals.
Training must also raise staff awareness of the physical and psychological risks related to the use of force which are specific to certain categories of detainees such as women, minors, the elderly and people who have a disability.
Every instance of the use of force must be duly recorded in a register. This must contain, as a minimum, information enabling the staff involved in the use of force to be identified, together with the reasons justifying it, the methods used and the person/people concerned. In the case of injuries, the person must be immediately taken in charge of by a doctor.
As far as possible, prison staff should obtain authorisation to use force from their management structure.
Whether a prior check has been carried out or not, it is important for the management to carry out a check after the use of force, including by consulting the register recording the instances of the use of force, and, if necessary, viewing any video recordings. This subsequent check must also enable the management to oversee and improve the professional practices of its staff.
Legal standards (9) Print
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
1. Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on:[...]
(c) Security and safety, including the concept of dynamic security, the use of force and instruments of restraint, and the management of violent offenders, with due consideration of preventive and defusing techniques, such as negotiation and mediation; [...]
1. Prison staff shall not, in their relations with the prisoners, use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. Prison staff who have recourse to force must use no more than is strictly necessary and must report the incident immediately to the prison director.
2. Prison staff shall be given special physical training to enable them to restrain aggressive prisoners.
3. Except in special circumstances, prison staff performing duties which bring them into direct contact with prisoners should not be armed. Furthermore, prison staff should in no circumstances be provided with arms unless they have been trained in their use.
Code of Conduct for Law Enforcement Officials
Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
Law enforcement officials, in their relations with persons in custody or detention, shall not use force, except when strictly necessary for the maintenance of security and order within the institution, or when personal safety is threatened.
Law enforcement officials, in their relations with persons in custody or detention, shall not use firearms, except in self-defence or in the defence of others against the immediate threat of death or serious injury, or when strictly necessary to prevent the escape of a person in custody or detention presenting the danger referred to in principle 9.
United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules)
Recourse to instruments of restraint and to force for any purpose should be prohibited, except as set forth in rule 64 below.
Instruments of restraint and force can only be used in exceptional cases, where all other control methods have been exhausted and failed, and only as explicitly authorized and specified by law and regulation. They should not cause humiliation or degradation, and should be used restrictively and only for the shortest possible period of time. By order of the director of the administration, such instruments might be resorted to in order to prevent the juvenile from inflicting self-injury, injuries to others or serious destruction of property. In such instances, the director should at once consult medical and other relevant personnel and report to the higher administrative authority.
The carrying and use of weapons by personnel should be prohibited in any
facility where juveniles are detained.
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas
Principle XXIII - Measures to combat violence and emergency situations
[...] 2. Criteria for the use of force and weapons
The personnel of places of deprivation of liberty shall not use force and other coercive means, save exceptionally and proportionally, in serious, urgent and necessary cases as a last resort after having previously exhausted all other options, and for the time and to the extent strictly necessary in order to ensure security, internal order, the protection of the fundamental rights of persons deprived of liberty, the personnel, or the visitors.
The personnel shall be forbidden to use firearms or other lethal weapons inside places of deprivation of liberty, except when strictly unavoidable in order to protect the lives of persons.
In all circumstances, the use of force and of firearms, or any other means used to counteract violence or emergencies, shall be subject to the supervision of the competent authority.
European Prisons Rules
1. Prison staff shall not use force against prisoners except in self defence or in cases of attempted escape or active or passive physical resistance to a lawful order and always as a last resort.
2. The amount of force used shall be the minimum necessary and shall be imposed for the shortest necessary time.
There shall be detailed procedures about the use of force including stipulations about:
a. the various types of force that may be used;
b. the circumstances in which each type of force may be used;
c. the members of staff who are entitled to use different types of force;
d. the level of authority required before any force is used; and
e. the reports that must be completed once force has been used.
Staff who deal directly with prisoners shall be trained in techniques that enable the minimal use of force in the restraint of prisoners who are aggressive.
1. Staff of other law enforcement agencies shall only be involved in dealing with prisoners inside prisons in exceptional circumstances.
2. There shall be a formal agreement between the prison authorities and any such other law enforcement agencies unless the relationship is already regulated by domestic law.
3. Such agreement shall stipulate:
a. the circumstances in which members of other law enforcement agencies may enter a prison to deal with any conflict;
b. the extent of the authority which such other law enforcement agencies shall have while they are in the prison and their relationship with the director of the prison;
c. the various types of force that members of such agencies may use;
d. the circumstances in which each type of force may be used;
e. the level of authority required before any force is used; and
f. the reports that must be completed once force has been used.
Extract from the 19th General Report [CPT/Inf (2010) 28]
The CPT considers that the use of electric discharge weapons should be subject to the principles of necessity, subsidiarity, proportionality, advance warning (where feasible) and precaution. These principles entail, inter alia, that public officials to whom such weapons are issued must receive adequate training in their use. As regards more specifically electric discharge weapon capable of discharging projectiles, the criteria governing their use should be directly inspired by those applicable to firearms.
Extract from the CPT 2nd General Report [CPT/Inf (92) 3]
Prison staff will on occasion have to use force to control violent prisoners and, exceptionally, may even need to resort to instruments of physical restraint. These are clearly high risk situations insofar as the possible ill-treatment of prisoners is concerned, and as such call for specific safeguards.
A prisoner against whom any means of force have been used should have the right to be immediately examined and, if necessary, treated by a medical doctor. This examination should be conducted out of the hearing and preferably out of the sight of non-medical staff, and the results of the examination (including any relevant statements by the prisoner and the doctor's conclusions) should be formally recorded and made available to the prisoner. In those rare cases when resort to instruments of physical restraint is required, the prisoner concerned should be kept under constant and adequate supervision. Further, instruments of restraint should be removed at the earliest possible opportunity; they should never be applied, or their application prolonged, as a punishment. Finally, a record should be kept of every instance of the use of force against prisoners.
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa
25. Procedural and other safeguards
States should have in place, and make known, laws, policies and standard operating procedures, which accord with Member States’ obligations under the African Charter on Human and Peoples’ Rights and other international law and standards, to:
b. Limit the use of force against persons in police custody or pre-trial detention to circumstances in which force is strictly necessary for, and proportionate to, the need for maintenance of security and order within the detention facility, or when personal safety is threatened.
c. Limit the use of firearms for reasons of self-defence or the defence of others against the imminent threat of death or serious injury.
Questions for monitors (12) Print
What is the legal framework for the use of force in the prison setting?
Does the law prohibit the use and carrying of weapons in establishments for minors?
Does the law prohibit the use and carrying of weapons in establishments for minors?
How is the carrying of weapons (lethal and non-lethal) regulated by law?
How is the use of electrical discharge weapons regulated?
What measures are taken by the authorities to avoid the use of force (dynamic security, techniques for de-escalating violence, etc.)?
Are staff interventions involving the use of force proportional to the situations with which they are faced?
How is the issue of the use of force included in the training of prison staff? What is the emphasis placed on?
Are detainees who have been subjected to the use of force examined and treated by a doctor immediately?
Are certain categories of detainees subjected to the use of force in a discriminatory manner?
Are instances of the use of force routinely recorded in a register?
If there is an allegation of the abusive use of force, is an administrative and/or legal investigation opened?