Use of force

Analysis

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:

  1. 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).
  2. 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.
  3. 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.

Risks

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.

children

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.

disabilities

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.

Staff training

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.

women
foreigners
disabilities
minorities
children

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.

Controls

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.