Prison administrations shall make all reasonable accommodation and adjustments to ensure that prisoners with physical, mental or other disabilities have full and effective access to prison life on an equitable basis.
"No person shall be received in a prison without a valid commitment order. The following information shall be entered in the prisoner file management system upon admission of every prisoner:
(a) Precise information enabling determination of his or her unique identity, respecting his or her self-perceived gender"
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.
All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.
All parts of a prison regularly used by prisoners shall be properly maintained and kept scrupulously clean at all times.
General living conditions addressed in these rules, including those related to light, ventilation, temperature, sanitation, nutrition, drinking water, access to open air and physical exercise, personal hygiene, health care and adequate personal space, shall apply to all prisoners without exception.
Prisoners shall be allocated, to the extent possible, to prisons close to their homes or their places of social rehabilitation.
The design of detention facilities for juveniles and the physical environment should be in keeping with the rehabilitative aim of residential treatment, with due regard to the need of the juvenile for privacy, sensory stimuli, opportunities for association with peers and participation in sports, physical exercise and leisure-time activities. The design and structure of juvenile detention facilities should be such as to minimize the risk of fire and to ensure safe evacuation from the premises. There should be an effective alarm system in case of fire, as well as formal and drilled procedures toensure the safety of the juveniles. Detention facilities should not be located in areas where there are known health or other hazards or risks.
Sleeping accommodation should normally consist of small group dormitories or individual bedrooms, account being taken of local standards. During sleeping hours there should be regular, unobtrusive supervision of all sleeping areas, including individual rooms and group dormitories, in order to ensure the protection of each juvenile. Every juvenile should, in accordance with local or national standards, be provided with separate and sufficient bedding, which should be clean when issued, kept in good order and changed often enough to ensure cleanliness.
In this context the Working Group reiterates the obligation of States to protect those who are held in their custody from assaults and abuses by fellow detainees. It is imperative to allocate entirely separate premises to women in institutions which receive both men and women, if it is not possible to detain women in separate institutions, and to keep young prisoners separate from adults as, for example, envisaged by paragraph 8 of the Standard Minimum Rules for the Treatment of Prisoners. The obligation to protect the right to freedom from violence is even more obvious as far as abuses committed by State authorities are concerned.
As to vulnerable groups in detention which are susceptible to sexual abuse, the Working Group makes the following recommendations:
(a) States in which sexual abuse of detainees by fellow inmates or by State authorities is reported should take measures as a matter of urgency to ensure that juveniles are held separate from adults and women separate from men. Custodians of female prisoners should be women;
Failure to accommodate a convicted minority prisoner’s particular needs may cause so much additional suffering, compared with that of non-minority prisoners in an equivalent position, as to render the punishment discriminatory and a violation of equality before the law. Such punishment could constitute cruel, inhuman or degrading punishment or even torture.
[...] The requirement that there be an attempt to place each prisoner in a facility near his or her home takes on particular importance for minority prisoners in the case where a particular minority is geographically concentrated.
[...] Children in conflict with the law should be held in detention centres specifically designed for persons under the age of 18 years, offering a non-prison-like environment and regimes tailored to their needs and run by specialized staff, trained in dealing with children. Such facilities should offer ready access to natural light and adequate ventilation, access to sanitary facilities that are hygienic and respect privacy and, in principle, accommodation in individual bedrooms. Large dormitories should be avoided.
17. The Committee has expressed its concerns for the poor living conditions in places of detention, particularly prisons, and has recommended that States parties ensure that places of detention are accessible and provide humane living conditions. More recently, it recommended “that immediate steps are [to be] taken to address the poor living conditions in institutions.” This Committee has recommended that States parties establish legal frameworks for the provision of reasonable accommodation that preserve the dignity of persons with disabilities, and guarantee this right for those detained in prisons. It has also addressed the need to “[p]romote training mechanisms for justice and prison officials in accordance with the Convention’s legal paradigm”.
18. While developing its jurisprudence under the Optional Protocol to the Convention , the Committee has affirmed that, under article 14(2) of the Convention, persons with disabilities deprived of their liberty have the right to be treated in compliance with the objectives and principles of the Convention, including conditions of accessibility and reasonable accommodation. The Committee has recalled that States parties must take all relevant measures to ensure that persons with disabilities who are detained may live independently and participate fully in all aspects of daily life in their place of detention, including ensuring their access, on an equal basis with others, to the various areas and services, such as bathrooms, yards, libraries, study areas, workshops and medical, psychological, social and legal services. The Committee has stressed that a lack of accessibility and reasonable accommodation places persons with disabilities in sub-standard conditions of detention that are incompatible with article 17 of the Convention and may constitute a breach of article 15(2).
With regard to women, girls, and lesbian, gay, bisexual and transgender persons in detention, the Special Rapporteur calls on all States to:
[...] (s) Take individuals’ gender identity and choice into account prior to placement and provide opportunities to appeal placement decisions; [...]
Transgender women may be at heightened risk of violence and abuse when placed in male prisons or jails. According to the United Nations Office on Drugs and Crime (UNODC), when accommodated according to their birth gender, especially when male-to-female transgender prisoners are placed in men’s prisons, transgender prisoners are often subjected to extreme physical, sexual and emotional abuse at the hands of inmates and penitentiary or police officials. In some cases, transgender women in need of life-saving medical treatment have died owing to discrimination in and denial of access to essential services. Advocates have warned of the risk of “mis-gendering” in prisons as a serious form of violence. Killings of transgender persons in conditions of detention that fail to take into account the risks they face, where these and the seriousness of the harm could be well foreseen owing to their gender expression, are arbitrary.
Noting that on the basis of their gender identity, gender expression or sexual orientation, lesbian, gay, bisexual, transgender, questioning and intersex persons are particularly exposed to violence and killings by both State and non-State actors, States should:
(e) Ensure that judicial and prison authorities, when deciding allocation of trans-gender person to either a male or female prison, do so in consultation with the prisoner concerned and on a case-by-case basis. Safety considerations and the wishes of the individual must be paramount.
Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation.
Accommodation shall only be shared if it is suitable for this purpose and shall be occupied by prisoners suitable to associate with each other.
As far as possible, prisoners shall be given a choice before being required to share sleeping accommodation.
Accommodation of all prisoners shall be in conditions with the least restrictive security arrangements compatible with the risk of their escaping or harming themselves or others.
As far as possible untried prisoners shall be given the option of accommodation in single cells, unless they may benefit from sharing accommodation with other untried prisoners or unless a court has made a specific order on how a specific untried prisoner should be accommodated.
Persons deprived of liberty shall have adequate floor space, daily exposure to natural light, appropriate ventilation and heating, according to the climatic conditions of their place of deprivation of liberty. They shall be provided with a separate bed, suitable bed clothing, and all other conditions that are indispensable for nocturnal rest. The installations shall take into account the special needs of the sick, persons with disabilities, children, pregnant women or breastfeeding mothers, and the elderly, amongst others.
On occasion, CPT delegations have found immigration detainees held in prisons. Even if the actual conditions of detention for these persons in the establishments concerned are adequate -which has not always been the case - the CPT considers such an approach to be fundamentally flawed. A prison is by definition not a suitable place in which to detain someone who is neither convicted nor suspected of a criminal offence.
Admittedly, in certain exceptional cases, it might be appropriate to hold an immigration detainee in a prison, because of a known potential for violence. Further, an immigration detainee in need of in-patient treatment might have to be accommodated temporarily in a prison health-care facility, in the event of no other secure hospital facility being available. However, such detainees should be held quite separately from prisoners, whether on remand or convicted.
A well-designed juvenile detention centre will provide positive and personalised conditions of detention for young persons deprived of their liberty. In addition to being of an adequate size, well lit and ventilated, juveniles' sleeping and living areas should be properly furnished, well-decorated and offer appropriate visual stimuli. Unless there are compelling security reasons to the contrary, juveniles should be allowed to keep a reasonable quantity of personal items.
In a number of countries visited by the CPT, particularly in central and eastern Europe, inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a daily basis, such as sleeping and living areas as well as sanitary facilities. The CPT has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when, as is frequently the case, the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions. No doubt, various factors - including those of a cultural nature - can make it preferable in certain countries to provide multi-occupancy accommodation for prisoners rather than individual cells. However, there is little to be said in favour of - and a lot to be said against - arrangements under which tens of prisoners live and sleep together in the same dormitory.
Large-capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives. Moreover, the risk of intimidation and violence is high. Such accommodation arrangements are prone to foster the development of offender subcultures and to facilitate the maintenance of the cohesion of criminal organisations. They can also render proper staff control extremely difficult, if not impossible; more specifically, in case of prison disturbances, outside interventions involving the use of considerable force are difficult to avoid. With such accommodation, the appropriate allocation of individual prisoners, based on a case by case risk and needs assessment, also becomes an almost impossible exercise. All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level; further, in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufficient ventilation for so many persons will often lead to deplorable conditions.
The CPT must nevertheless stress that moves away from large-capacity dormitories towards smaller living units have to be accompanied by measures to ensure that prisoners spend a reasonable part of the day engaged in purposeful activities of a varied nature outside their living unit.
In order to limit the risk of exploitation, special arrangements should be made for living quarters that are suitable for children, for example, by separating them from adults, unless it is considered in the child’s best interests not to do so. This would, for instance, be the case when children are in the company of their parents or other close relatives. In that case, every effort should be made to avoid splitting up the family.
The duty of care which is owed by a State to persons deprived of their liberty includes the duty to protect them from others who may wish to cause them harm. The CPT has occasionally encountered allegations of woman upon woman abuse. However, allegations of ill-treatment of women in custody by men (and, more particularly, of sexual harassment, including verbal abuse with sexual connotations) arise more frequently, in particular when a State fails to provide separate accommodation for women deprived of their liberty with a preponderance of female staff supervising such accommodation.
As a matter of principle, women deprived of their liberty should be held in accommodation which is physically separate from that occupied by any men being held at the same establishment. That said, some States have begun to make arrangements for couples (both of whom are deprived of their liberty) to be accommodated together, and/or for some degree of mixed gender association in prisons. The CPT welcomes such progressive arrangements, provided that the prisoners involved agree to participate, and are carefully selected and adequately supervised.
A well-designed juvenile detention centre should provide positive and personalised conditions of detention for young persons, respecting their dignity and privacy. All rooms should be appropriately furnished and provide good access to natural light and adequate ventilation.
Juveniles should normally be accommodated in individual bedrooms; reasons should be provided explaining why it is in the best interests of the juvenile to share sleeping accommodation with another inmate. Juveniles should be consulted before being required to share sleeping accommodation and should be able to state with whom they would wish to be accommodated.
Every efort should be made to avoid placing juveniles in large dormitories as the CPTs experience is that this putsjuveniles at a signifcantly higher risk of violence and exploitation. Indeed, establishments with large dormitories should be phased out.
50. Article 30 (1) (c) calls on States Parties to establish ‘special alternative institutions’ for holding mothers. Many States Parties do not allocate sufficient resources to prison upgrades such that special alternative institutions which protect the rights of children could realistically be established. Therefore, such institutions should only be considered as a last resort where alternatives to detention cannot be considered and it is in a child’s best interests to remain with their mother or primary caregiver.
51. Such institutions must focus on realising children’s rights; for instance, programs that allow mothers to reside together with their infants in prison nurseries could be expanded and employed where deemed in a child’s interests. Work-release programs that expand the opportunities for work release in lieu of prison and also provide greater opportunities for incarcerated parents to participate in direct care of their children should be encouraged.
52. In addition, expanding treatment programs and providing priority for substance abuse programs to parents facing incarceration could contribute to reducing incarceration and time served in incarceration facilities. The geographic location of prisons, as well as structural and financial barriers that make visits from children difficult and expensive needs to form part of the “special” nature that these incarceration facilities need to try to address. As much as possible, minimizing distance between imprisoned mothers/ parents and children should be embraced as a policy of incarceration facilities. Making funds available for smaller facilities or halfway houses that could be built in communities to accommodate non-violent inmates with children might be worth consideration.
53. It is important for States Parties to ensure that reforms are implemented comprehensively and do not depend upon the good will and direction of the facilities’ leadership and personnel, but rather upon the force of law.
Conditions of detention in police custody and pre-trial detention shall conform with all applicable international law and standards. They shall guarantee the right of detainees in police custody and pre-trial detention to be treated with respect for their inherent dignity, and to be protected from torture and other cruel, inhumane or degrading treatment or punishment.
d. Accessibility and reasonable accommodation States shall take measures to ensure that:
i. Persons with disabilities can access, on an equal basis with other persons subject to police custody and pre-trial detention, the physical environment, information and communications, and other facilities provided by the detaining authority. Accessibility should also take into account the gender and age of persons with disability, and equal access should be provided regardless of the type of impairment, legal status, social condition, gender and age of the detainee.
ii. The physical conditions of police custody and pre-trial detention are adapted to take into account the needs of persons with physical, mental, intellectual or sensory disabilities, and that the detention of persons with disability does not amount to inhuman or degrading treatment.
I) Adopt and implement policies on placement and treatment of persons who are deprived of their liberty that reflect the needs and rights of persons of all sexual orientations, gender identities, gender expressions, and sex characteristics and ensure that persons are able to participate in decisions regarding the facilities in which they are placed"
34. In order to ensure the right of a child to the highest attainable standard of health, appropriate pre-natal and post-natal health care, support and information shall be provided for imprisoned mothers. Pregnant women shall be allowed to give birth in a hospital outside prison. Instruments of restraint shall never be used on women during labour, during birth and immediately after birth. Arrangements and facilities for pre-natal and post-natal care in prison shall respect, as far as practicable, cultural diversity.
35. A child born to an imprisoned mother shall be registered and issued with a birth certificate without delay, free of charge and in line with applicable national and international standards. The birth certificate shall not mention that the child was born in prison.
36. Infants may stay in prison with a parent only when it is in the best interests of the infant concernedan d in accordance with national law. Relevant decisions to allow infants to stay with their parent in prison shall be made on a case-by-case basis. Infants in prison with a parent shall not be treated as prisoners and shall have the same rights and, as far as possible, the same freedoms and opportunities as all children.
37. Arrangements and facilities for the care of infants who ar e in prison with a parent, including livingand sleeping accommodation, shall be child-friendly and shall:
- ensure that the best interests and safety of infants are a primary consideration, as are their rights, including those regarding development, play, non-discrimination and the right to be heard;
- safeguard the child’s welfare and promote their healthy development, including provision of ongoing health-care services, and arranging for appropriate specialists to monitor their development in collaboration with community health services;
- ensure that infants are able to freely access open-air areas in the prison, and can access the outside world with appropriate accompaniment and attend nursery schools;
- promote attachment between a child and their parent, allowing the child-parent relationship to develop as normally as possible, enabling parents to exercise appropriate parental responsibility for their child and providing maximum opportunities for imprisoned parents to spend time with their children;
- support imprisoned parents living with their infants and facilitate the development of their parental competency, ensuring that they are provided with opportunities to look after their children, cook meals for them, get them ready for nursery school and spend time playing with them, both inside the prison and in open-air areas;
- as far as possible, ensure that infants have access to a similar level of services and support to that which is available in the community, and that the environment provided for such children’s upbringing shall be as close as possible to that of children outside prison;
- ensure that contact with the parent, siblings and other family members living outside the prison facility is enabled, except if it is not in the infant’s best interests.
38. Decisions as to when an infant is to be separated from their imprisoned parent shall be based on individual assessment and the best interests of the child within the scope of the applicable national law.
39. The transition of the infant to life outside prison shall be undertaken with sensitivity, only when suitable alternative care arrangements for the child have been identified and, in the case of foreign-national prisoners, in consultation with consular officials, where appropriate.
40. After infants are separated from their parent in prison and they are placed with family or relatives or in other alternative care, they shall be given the maximum opportunity possible and appropriate facilities to meet with their imprisoned parent, except when it is not in their best interests.
16.1. Decisions regarding the allocation of foreign prisoners shall take into account the need to alleviate their potential isolation and to facilitate their contact with the outside world.
16.2. Subject to the requirements of safety and security, and the individual needs of foreign prisoners, consideration shall be given to housing foreign prisoners in prisons close to transport facilities that would enable their families to visit them.
16.3. Where appropriate and subject to the requirements of safety and security, foreign prisoners shall be allocated to prisons where there are others of their nationality, culture, religion or who speak their language.
17. Decisions on whether to accommodate foreign prisoners together shall be based primarily on their individual needs and the facilitation of their social reintegration, while ensuring a safe and secure environment for prisoners and staff.