Circumstances exceptionally justifying to resort to instruments of restraint
Instruments of restraint enable a person’s freedom of movement to be restricted or prevented. Penal authorities may only resort to them for a limited period of time in specific situations, which are clearly identified and recognised as being legal.
In no case may methods of restraint be used as a disciplinary sanction.
Methods of restraint may be used in two main situations:
to prevent the risk of escape during transfers of detainees. In this type of situation (court appearance, hospitalisation, transfer to another establishment or removal of a detainee in anticipation of him/her being sent to a third country) the least incapacitating methods of restraint (handcuffs, straps, belts) must be used.
to prevent physical assaults on other detainees or members of staff or on the security of buildings, or to prevent acts of self-harm. In these situations, the authorities may have cause to use more incapacitating methods of restraint (straitjackets, restraining beds, medical sedation).
Whatever the situation, the use of physical methods of restraint must be undertaken as a last resort, in an exceptional manner and for a limited duration. Moreover, the more incapacitating the technique used, the stronger must be the guarantees surrounding the reasons and methods of use.
Respect for the principles of legality, necessity and proportionality
The principle of legality requires that recourse to instruments of restraint should be enshrined in law.
The law must specify which instruments may be used and under what circumstances. It must also lay down the conditions of use of these instruments, including the duration.
The principle of necessity aims to ensure that the instruments of restraint are not in fact used other than as a last resort when all others means of maintaining order and security have been used in vain. The duration of use of any such instrument must be considered in light of this principle. Therefore, any recourse to an instrument of restraint must be re-evaluated regularly and ceased as soon as the reasons leading to its use are no longer present.
The principle of proportionality is applied to guarantee that the method of restraint used is appropriate in respect of the assessed risk and that the least incapacitating method is chosen.
The principle of proportionality also aims to guarantee that the duration of use of methods of restraint corresponds to the risk identified. In concrete terms, the medical staff of the establishment must check at regular intervals that these instruments have not had any negative effects on the physical or psychological health of the person concerned.
Instruments of physical restraint
One may distinguish two principal types of instruments of restraint:
1) The least restrictive instruments which do not prevent people from moving around, such as cuffs (placed on the wrists, ankles or legs), belts, straps or even straitjackets.
2) Instruments of restraint known as ““four-point restraints”” which are used to tie down the four limbs of a person. These are, for example, restraining beds or boards which completely immobilise the person. The use of such instruments requires the compulsory participation of a doctor and must be subject to a stricter control in light of the physical and psychological consequences of their use.
Certain instruments of physical restraint such as chains and irons are totally banned. Likewise, detaining authorities must not use weapons with electrical charges as an instrument of restraint.
The use of methods of chemical restraint must be avoided. When sedation is used as chemical restraint it must be strictly controlled and limited solely to the prevention of acts of violence against others or of self-harm. Such use must be decided in agreement with a doctor. Any administration of sedatives must be done by a doctor or authorised medical staff.
In no case must the use of these sedation procedures be a substitute for a therapeutic approach.
Risks related to the abusive or arbitrary use of means of restraint
The legal framework clearly requires recourse to methods of restraint to be in strict accordance with the principles of necessity and proportionality. Methods of restraint must therefore never be used in a routine, arbitrary and/or discriminatory way.
When such use is routine, as in the case when people are automatically handcuffed during a transfer without an individualised assessment of the need for such a measure, the practice may be considered abusive.
The use is arbitrary when the authorities prioritise the alleged level of danger or the detention regime of certain detainees and restrain them during transfer, with no individual risk assessment having been undertaken.
The use of means of restraint may prove to be discriminatory when it affects certain specific groups independently of their alleged level of danger or their detention regime.
The abusive nature of recourse to instruments of restraint may also relate to the way in which they are used, which may conceal a desire to punish on the part of the authorities. For example, even if recourse to handcuffs is justified by the situation, they may be deliberately tightened in an excessive manner.
The use of methods of restraint may prove to be discriminatory when they affect certain specific groups independently of their alleged level of danger or their detention regime.
Risks of physical and psychological suffering
The use of instruments of restraint may cause physical or psychological trauma to the people who are subjected to it, even when lesser restrictive methods are used. Such practices may therefore constitute an assault on the physical or mental well-being of the people concerned. For example, the use of handcuffs may prove painful and cause injuries to the wrists if it is prolonged or if the handcuffs are too tight.
Tying a person down flat on their back on the ground may cause life-threatening risks, especially from positional asphyxia.
The use of instruments of restraint may also cause suffering and humiliation, especially when used in public view.
Pregnant women should not be subjected to methods of restraint. The use of these (including handcuffs) is totally prohibited during labour, giving birth and the moments immediately following birth.
The risk of humiliation and stigmatisation is particularly great for detainees who are minors. Authorities who use these instruments in an exceptional manner in the detention of minors must take particular care and avoid any form of exposure to public view.
Role of the doctor
The doctor has a particularly important role to play in checking the instruments of restraint used as well as their physical and psychological effects. Generally speaking, the more incapacitating the method used, the more the person subjected to it is in a state of physical and psychological vulnerability, and the more crucial the role of the doctor.
Medical monitoring is necessary in the case of prolonged use of the method of restraint and the doctor must have the power to ask for the immediate suspension of the measure.
When “four-point restraints” are used, a doctor must validate the decision and be involved in applying them to avoid any harmful effect to the physical well-being of the people concerned.
Only a doctor may take the decision to administer sedatives or other means of chemical restraint.
When the instruments of restraint have been removed, the people who have been subjected to them must have access to a doctor who will assess any possible consequences and any treatment that should be given
Whatever instrument of restraint is used, a doctor must be involved when it is used on pregnant women, disabled detainees or those with mental problems or on detainees who are minors.
Oversight by management and complaints procedure
The use of means of restraint must always be subject to oversight by management. However, the more incapacitating the method used and the more likely it is to cause physical or psychological suffering, the stricter must be the oversight by management in order to assess its legality and limit harmful effects.
When prior authorisation is not possible, particularly in the case of acts of violence towards others, self-harm, or escape attempts, the use of these means must be recorded later in a register which must state the name of the person concerned, the members of staff involved, the method(s) used and the duration of their use.
Detainees who consider that they have been subjected to such methods of restraint in an arbitrary manner or who claim to be suffering physical and/or psychological after-effects must have access to administrative and/or legal complaints procedures.
Legal standards (10) Print
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
1. The use of chains, irons or other instruments of restraint which are inherently degrading or painful shall be prohibited.
2. Other instruments of restraint shall only be used when authorized by law and in the following circumstances:
(a) As a precaution against escape during a transfer, provided that they are removed when the prisoner appears before a judicial or administrative authority;
(b) By order of the prison director, if other methods of control fail, in order to prevent a prisoner from injuring himself or herself or others or from damaging property; in such instances, the director shall immediately alert the physician or other qualified health-care professionals and report to the higher administrative authority.
When the imposition of instruments of restraint is authorized in accordance with paragraph 2 of rule 47, the following principles shall apply:
(a) Instruments of restraint are to be imposed only when no lesser form of control would be effective to address the risks posed by unrestricted movement;
(b) The method of restraint shall be the least intrusive method that is necessary and reasonably available to control the prisoner’s movement, based on the level and nature of the risks posed;
(c) Instruments of restraint shall be imposed only for the time period required, and they are to be removed as soon as possible after the risks posed by unrestricted movement are no longer present.
Instruments of restraint shall never be used on women during labour, during childbirth and immediately after childbirth.
The prison administration should seek access to, and provide training in the use of, control techniques that would obviate the need for the imposition of instruments of restraint or reduce their intrusiveness.
United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules)
Instruments of restraint shall never be used on women during labour, during birth and immediately after birth.
United Nations Rules for the Protection of Juveniles Deprived of their Liberty
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.
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57, 5 January 2016
The use of shackles and handcuffs on pregnant women during labour and immediately after childbirth is absolutely prohibited and representative of the failure of the prison system to adapt protocols to unique situations faced by women (A/HRC/17/26/Add.5 and Corr.1). When used for punishment or coercion, for any reason based on discrimination or to cause severe pain, including by posing serious threats to health, such treatment can amount to torture or ill-treatment.
With regard to women, girls, and lesbian, gay, bisexual and transgender persons in detention, the Special Rapporteur calls on all States to:
[...] (h) Immediately cease the practice of shackling and handcuffing of pregnant women and women in labour and of women immediately after childbirth; [...]
European Prisons Rules
1. The use of chains and irons shall be prohibited.
2. Handcuffs, restraint jackets and other body restraints shall not be used except:
a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; or
b. by order of the director, if other methods of control fail, in order to protect a prisoner from self injury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority.
3. Instruments of restraint shall not be applied for any longer time than is strictly necessary.
4. The manner of use of instruments of restraint shall be specified in national law.
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.
Extract from the 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. (…) 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.
Extract from 10th General Report - CPT/Inf(2000)13
It is axiomatic that babies should not be born in prison, and the usual practice in Council of Europe member States seems to be, at an appropriate moment, to transfer pregnant women prisoners to outside hospitals.
Nevertheless, from time to time, the CPT encounters examples of pregnant women being shackled or otherwise restrained to beds or other items of furniture during gynaecological examinations and/or delivery. Such an approach is completely unacceptable, and could certainly be qualified as inhuman and degrading treatment. Other means of meeting security needs can and should be found.
Extract from 20th CPT General Report - CPT/Inf (2010) 28
In the CPT’s view, the use of EDW should be limited to situations where there
is a real and immediate threat to life or risk of serious injury. Recourse to such
weapons for the sole purpose of securing compliance with an order is inadmissible.
Furthermore, recourse to such weapons should only be authorised when other less
coercive methods (negotiation and persuasion, manual control techniques, etc) have
failed or are impracticable and where it is the only possible alternative to the use of a
method presenting a greater risk of injury or death.
Applying these principles to specific situations, the CPT has, for example,
come out clearly against the issuing of EDW to members of units responsible for
deportation operations vis-à-vis immigration detainees. Similarly, the Committee
has expressed strong reservations about the use of electric discharge weapons in
prison (and a fortiori closed psychiatric) settings. Only very exceptional
circumstances (e.g. a hostage-taking situation) might justify the resort to EDW in
such a secure setting, and this subject to the strict condition that the weapons
concerned are used only by specially trained staff. There should be no question of any form of EDW being standard issue for staff working in direct contact with persons
held in prisons or any other place of deprivation of liberty
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:
d. Limit the permissible use of restraints, and the type of restraints, to ensure consistency with the presumption of innocence, treatment of detained persons that accords with respect for the inherent dignity of the person.
Questions for monitors (16) Print
Are the conditions and ways in which methods of restraint used enshrined in law?
What are the situations provided for in law which permit the use of means of restraint?
In practice, how are the means of restraint in fact used?
What is the internal management procedure concerning the use of means of restraint?
Is a doctor involved in the procedure to assess the means of restraint used?
Are instruments of restraint used in a discriminatory manner with regards to certain groups of detainees?
Does an internal procedure enable the proportionality of the means of restraint used to be regularly assessed?
What are the physical means of restraint used by the authorities?
Are the members of staff trained, in a practical and theoretical way, in the conditions for recourse to means of restraint?
Is sedation used as a mean of restraint? If this is the case, is a doctor involved?
Is a doctor routinely consulted when “four-point restraints” (or more) are used?
Are methods of restraint used on detainees who are minors?
Are methods of restraint used on pregnant women?
Is a doctor routinely consulted when means of restraint are used on disabled detainees?
Is the use of methods of restraint recorded in a register?
Does every allegation of abusive use of means of restraint give rise to procedures of administrative and/or legal enquiries?