2. (a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
Key Elements
The primary purpose of separation is to ensure the protection and safety of persons deprived of their liberty, and the optimal management of prisons. It is also a measure to preserve the principle of the presumption of innocence of untried persons and to provide the most appropriate prison conditions for each category of detainees.
As a matter of principle, women should be separated from men, minors from adults, and untried detainees from convicted detainees. Migrants detained in connection with their migrant status should be separated from convicted persons and held in conditions as far removed from a prison regime as possible. Persons imprisoned for debt and other civil prisoners should be kept separate from persons imprisoned for criminal offenses.
The principle of separation should result in either the existence of units strictly separate from each other within the same facility, or of special institutions for the groups concerned. Separation measures should not lead to restrictions of access to services and care, or to the deterioration of material conditions of detention for the persons concerned.
Other separation criteria can be justified to protect detainees in situations of particular vulnerability due to their age, health condition, ethnicity, sexual orientation, or gender identity. In such cases, separation should not be systematic, should take into account the consent of the persons concerned, and should not amount to solitary confinement or to restrictions in acessing services and cares provided by the institution.
Analysis
The principle of separation
Separation is a measure applied to help protect the physical and mental integrity of detainees, to better monitor them individually, and to contribute to their rehabilitation. It also facilitates proper prison management.
International standards clearly stipulate that women should be separated from men, minors from adults, untried persons from convicted detainees, and civil detainees from detainees imprisoned for criminal offenses.
The separation between untried and convicted detainees is based on the principle of the presumption of innocence. It also helps to render effective the different prison regimes that should apply to these two categories of detainees regarding matters such as contact with the outside world, work, or access to vocational training.
The principle of separation can be guaranteed by allocating special facilities for the groups concerned, such as women prisons, or by allocating units strictly separate from each other within the same institution. In the absence of specific institutions due to a shortage of material resources or an insufficient number of inmates concerned to justify their creation, persons in the aforementioned categories should be held in a separate building within the prison grounds or in a strictly separate wing with no possible access to other parts of the institution. In such cases, separation must be guaranteed in regard to cells and dormitories, but also to public areas such as prison shops, exercise yards, and workshops. During movements inside the prison, including in relation to transfers, measures should be taken to avoid contact between the separated categories of detainees. In any case, separation measures should not lead to deterioration in the treatment or material conditions of the persons concerned.
Separation: neither a classification nor a disciplinary measure
The separation of detainees by category is distinct from their classification. Sentenced detainees should be classified within days of their arrival in prison. This procedure essentially aims to ensure detention conditions that correspond as adequately as possible to their needs, especially from the perspective of personalisation of the sentence’s execution and rehabilitation. Classification is also intended to prevent escape and to minimise the risks of violence and conflict. It is therefore carried out on a case by case basis through the most complete assessment possible of the newly arrived person to determine age, profile, type of crime or offense committed, the level of danger presented by the person to h/herself or others, vulnerability, and special needs, etc. If the classification is different from the separation by category, it may still practice result in a short or long-term separation measure.
The separation of detainees is in no way a disciplinary sanction. As such, it should be clearly distinct from solitary confinement as a disciplinary measure, and should never lead to restrictions of access to services (vocational training, work, etc.).
Separation due to specific risk situations
Certain detainees can be exposed to the risk of violence and abuse by fellow detainees because of their age (young adults or older inmates), health condition, ethnicity, sexual orientation, or gender identity. To minimise these risks and/or eliminate the exposure of these detainees to violence, the authorities must take protective measures that can result in their physical separation, for example by moving them to different cells, units, or even to other institutions in some cases.
These measures should not be systematic or discriminatory vis-à-vis certain groups, and their appropriateness should be periodically assessed. Measures solely intended to protect certain people should always be implemented with their informed consent to avoid arbitrary and/or discriminatory action against them. The detainees concerned are sometimes placed in units for "fragile" or "vulnerable" persons. Such units must ensure for them access to the same care, services and benefits offered to the rest of the detainee population.
In addition, the material conditions of detention should be at least as good as in the rest of the institution. Every effort should be made to ensure that this type of separation does not contribute to stigmatisation of the detainees concerned. Finally, this type of separation should not result in the solitary confinement of detainees in situations of vulnerability.
Detainees living with HIV or AIDS should not be separated from the rest of the prison population solely on the basis of their HIV/AIDS status.
Groups in situations of vulnerability
As a matter of principle women should always be separated from men. This measure is primarily intended to protect them from all forms of verbal or physical abuse, particularly sexual violence. Whenever possible, women should be held in separate institutions. In institutions open to both male and female inmates, the premises allocated to women should be entirely separate. In some specific contexts, the authorities may make arrangements to allow couples, where both the male and female partners are deprived of their liberty, to participate together in organised activities. Such activities, designed to improve the quality of life of the people concerned, must ensure the protection of the participants (especially that of the women) and should be adequately supervised.
Minors should be kept separate from adults to prevent potential abuse, including sexual abuse, and harmful influences affecting their development. Exceptions to this rule can only be justified based on the best interest of the child. Separation should also ensure that the detention regime of minors is appropriate to their age, as open as possible, and focused on their rehabilitation. In some cases, under controlled conditions, detained minors may be required to participate with adults in special treatment programmes that have been shown to be beneficial for the juveniles concerned, and if the adults involved have been carefully selected.
Young adults (18-21 years) should also be kept separate from adults and benefit from a special regime appropriate to their age and specific needs.
LGBTI persons are particularly at risk of discrimination and verbal, psychological and physical abuse from other detainees. The separation of an individual or group of LGBTI people can be an effective protective measure in certain situations. However, the identification of LGBTI people should be neither intrusive nor stigmatizing, and their separation from the rest of the prison population should always be decided with their consent. Those who do not wish to reveal their sexual orientation should not be forced to do so. Finally, separation should be an interim measure, and its relevance should be evaluated regularly, and not result in prolonged isolation. LGBTI people who are temporarily separated from the rest of the prison population should retain unrestricted access to the activities, services and benefits available in the institution.
Persons with physical or mental disabilities should not be systematically separated from the rest of the prison population. Some may require specific care or special protection measures, which may necessitate temporary segregation from the rest of the prison population. Such measures should always be implemented with their consent, and with care to avoid stigmatisation. Persons with disabilities who are temporarily separated from the rest of the prison population should retain unrestricted access to activities, services and benefits available in the institution.
Migrants deprived of their liberty for contravening migration laws should not be detained in institutions holding accused or convicted persons. Where applicable, upon their admission migrants should be kept strictly separate from the rest of the prison population, and should benefit from a regime that is as open as possible.
Foreigners and detainees from ethnic and religious minorities or indigenous peoples should have the same rights as the rest of the detained population. They should therefore not be kept separate based solely on ethnic, racial, religious or other such considerations. However, it is possible that some among them are victims of discrimination or violence, particularly of a racist-nature. At their request, and with their consent, they should be able to be temporarily segregated from the prisoners behind the violence. Such separation must not be systematic. In some contexts, the authorities are compelled to segregate detainees according to their origin in order to reduce tension and the risk of conflict and/or violence against minority groups. Such measures should be temporary, non-discriminatory and periodically reviewed, and should never be regarded as an effective long-term measure.
Legal standards
International Convenant on civil and political rights
Article 10
Article 10
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
Convention on the Rights of the Child
Article 37
States Parties shall ensure that:
c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
International Convention on the Rights of Migrants and their families
17.2
Accused migrant workers and members of their families shall, save in exceptional circumstances, be separated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
17.3
Any migrant worker or member of his or her family who is detained in a State of transit or in a State of employment for violation of provisions relating to migration shall be held, in so far as practicable, separately from convicted persons or persons detained pending trial.
17.4
During any period of imprisonment in pursuance of a sentence imposed by a court of law, the essential aim of the treatment of a migrant worker or a member of his or her family shall be his or her reformation and social rehabilitation. Juvenile offenders shall be separated from adults and be accorded treatment appropriate to their age and legal status.
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
Rule11
The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,
(a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated to women shall be entirely separate;
(b) Untried prisoners shall be kept separate from convicted prisoners;
(c) Persons imprisoned for debt and other civil prisoners shall be kept separate from persons imprisoned by reason of a criminal offence;
(d) Young prisoners shall be kept separate from adults.
Rule 89
2. These prisons do not need to provide the same degree of security for every group. It is desirable to provide varying degrees of security according to the needs of different groups. Open prisons, by the very fact that they provide no physical security against escape but rely on the self-discipline of the inmates, provide the conditions most favourable to the rehabilitation of carefully selected prisoners.
Rule 93
1. The purposes of classification shall be:
(a) To separate from others those prisoners who, by reason of their criminal records or characters, are likely to exercise a bad influence;
(b) To divide the prisoners into classes in order to facilitate their treatment with a view to their social rehabilitation.
2. So far as possible, separate prisons or separate sections of a prison shall be used for the treatment of different classes of prisoners.
United Nations Rules for the Treatment of Women Prisoners and Non - custodial Measures for Women Offenders (the Bangkok Rules)
Rule 40
Prison administrators shall develop and implement classification methods addressing the gender-specific needs and circumstances of women prisoners to ensure appropriate and individualized planning and implementation towards those prisoners‟ early rehabilitation, treatment and reintegration into society.
Rule 41
The gender-sensitive risk assessment and classification of prisoners shall:
(a) Take into account the generally lower risk posed by women prisoners to others, as well as the particularly harmful effects that high security measures and increased levels of isolation can have on women prisoners;
(b) Enable essential information about women‟s backgrounds, such as violence they may have experienced, history of mental disability and substance abuse, as well as parental and other caretaking responsibilities, to be taken into account in the allocation and sentence planning process;
(c) Ensure that women‟s sentence plans include rehabilitative programmes and services that match their gender-specific needs;
(d) Ensure that those with mental health care needs are housed in accommodation which is not restrictive, and at the lowest possible security level, and receive appropriate treatment, rather than being placed in higher security level facilities solely due to their mental health problems.
United Nations Rules for the protection of juveniles deprived of their liberty
Rule 27
As soon as possible after the moment of admission, each juvenile should be interviewed, and a psychological and social report identifying any factors relevant to the specific type and level of care and programme required by the juvenile should be prepared. This report, together with the report prepared by a medical officer who has examined the juvenile upon admission, should be forwarded to the director for purposes of determining the most appropriate placement for the juvenile within the facility and the specific type and level of care and programme required and to be pursued. When special rehabilitative treatment is required, and the length of stay in the facility permits, trained personnel of the facility should prepare a written, individualized treatment plan specifying treatment objectives and time-frame and the means, stages and delays with which the objectives should be approached.
Rule 28
The detention of juveniles should only take place under conditions that take full account of their particular needs, status and special requirements according to their age, personality, sex and type of offence, as well as mental and physical health, and which ensure their protection from harmful influences and risk situations. The principal criterion for the separation of different categories of juveniles deprived of their liberty should be the provision of the type of care best suited to the particular needs of the individuals concerned and the protection of their physical, mental and moral integrity and well-being.
Rule 29
In all detention facilities juveniles should be separated from adults, unless they are members of the same family. Under controlled conditions, juveniles may be brought together with carefully selected adults as part of a special programme that has been shown to be beneficial for the juveniles concerned.
Rule 30
Open detention facilities for juveniles should be established. Open detention facilities are those with no or minimal security measures. The population in such detention facilities should be as small as possible. The number of juveniles detained in closed facilities should be small enough to enable individualized treatment. Detention facilities for juveniles should be decentralized and of such size as to facilitate access and contact between the juveniles and their families. Small-scale detention facilities should be established and integrated into the social, economic and cultural environment of the community.
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/28/68, 5 March 2015
Paragraph 76
Children should be appropriately separated in detention, including but not limited to children in need of care and those in conflict with the law, children awaiting trial and convicted children, boys and girls, younger children and older children, and children with physical and mental disabilities and those without. Children detained under criminal legislation should never be detained together with adult detainees. The Special Rapporteur also notes that the permitted exception to the separation of children from adults provided for in article 37 (c) of the Convention on the Rights of the Child should be interpreted sensu stricto. The best interests of the child should not be defined in accordance to the convenience of the State. [...]
Paragraph 86
With regard to conditions during detention, the Special Rapporteur calls upon all States:
(a) To separate children and adults in all places of detention and, when in the best interests of the child, to hold children and adults together during daytime, and only under strict supervision;
(b) To consider case-by-case assessment to decide whether it is appropriate for a particular inmate to be transferred to an adult institution after reaching the age of majority
Human Rights Committee, General Comment, Article 10 International Covenant on Civil and Political Rights
Comment 9
Article 10, paragraph 2(a) provides for the segregation, save in exceptional circumstances, of accused persons from convicted ones. Such segregation is required in order to emphasize their status as unconvicted persons who at the same time enjoy the right to be presumed innocent as stated in article 14, paragraph 2.
Comment 13
[...] Under article 10, paragraph 3, juvenil offenders shall be segregate from adults and accorded treatment appropriate to their age and legal status in so far as conditions of detention are concerned
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57, 5 January 2016
Paragraph 70
With regard to women, girls, and lesbian, gay, bisexual and transgender persons in detention, the Special Rapporteur calls on all States to:
[...] (g) Ensure that male and female detainees are separated, including during transport; that female detainees are supervised and attended to only by female staff; and that escorts of female prisoners at least include female officers; [...]
European prison rules
Rule 18.8
In deciding to accommodate prisoners in particular prisons or in particular sections of a prison due account shall be taken of the need to detain:
a. untried prisoners separately from sentenced prisoners;
b. male prisoners separately from females; and
c. young adult prisoners separately from older prisoners.
Rule 35.4
Where children are detained in a prison they shall be kept in a part of the prison that is separate from that used by adults unless it is considered that this is against the best interests of the child.
Rule 51.3
As soon as possible after admission, prisoners shall be assessed to determine:
a. the risk that they would present to the community if they were to escape;
b. the risk that they will try to escape either on their own or with external assistance.
Rule 51.4
Each prisoner shall then be held in security conditions appropriate to these levels of risk.
Rule 51.5
The level of security necessary shall be reviewed at regular intervals throughout a person’s imprisonment.
Rule 52.1
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.
Rule 53 A
The following provisions apply to the separation of a prisoner from other prisoners as a special high security or safety measure:
1. Prisoners who are separated shall be offered at least two hours of meaningful human contact a day.
2. The decision on separation shall take into account the state of health of the prisoners concerned and any disabilities they may have, which may render them more vulnerable to the adverse effects of separation.
3. Separation shall be used for the shortest period necessary to achieve its objectives and shall be regularly reviewed in line with these objectives;
4. Prisoners who are separated shall not be subject to further restrictions beyond those necessary for meeting the stated purpose of such separation;
5. Cells used for separation shall meet the minimum standards applicable in these Rules to other accommodation for prisoners;
6. The longer a prisoner is separated from other prisoners, the more steps shall be taken to mitigate the negative effects of their separation by maximising their contact with others and by providing them with facilities and activities;
7. Prisoners who are separated shall be provided, as a minimum, with reading materials and the opportunity to exercise for one hour per day as specified for prisoners in Rule 27.1 and 27.2;
8. Prisoners who are separated shall be visited daily, including by the director of the prison or by a member of staff acting on behalf of the director of the prison;
9. When separation is adversely affecting a prisoner’s physical or mental health, action shall be taken to suspend it or to replace it with a less restrictive measure;
10. Any prisoner who is separated shall have a right of complaint in the terms set out in Rule 70.
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the America
Principle XIX - Separation of categories
The different categories of persons deprived of freedom shall be kept in separate places of deprivation of liberty or in different sections within the same institution, taking account of their sex, age, the reason for their deprivation of liberty, the need to protect the life and integrity of persons deprived of liberty or personnel, special needs of attention, or other circumstances relating to internal security.
In particular, arrangements shall be made to separate men and women; children and adults; the elderly; accused and convicted; persons deprived of liberty for civil reasons and those deprived of liberty on criminal charges. In cases of deprivation of liberty of asylum or refugee status seekers, and in other similar cases, children shall not be separated from their parents. Asylum or refugee status seekers and persons deprived of liberty due to migration issues shall not be deprived of liberty in institutions designed to hold persons deprived of liberty on criminal charges.
Under no circumstances shall the separation of persons deprived of liberty based on categories be used to justify discrimination, the use of torture, cruel, inhuman, or degrading treatment or punishment, or the imposition of harsher or less adequate conditions on a particular group. The same criteria shall be observed during transfers of persons deprived of liberty.
Principle XXIII Prevention 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;
Extract from the 7th General Report [CPT/Inf (97) 10]
Paragraph 28
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.
Extract from the 10th General Report on the CPT's activities [CPT/Inf (2000) 13]
Paragraph 24
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.
24th General Report of the European Committee for the Prevention of Torture
Paragraph 102
[...] Juveniles (whether on remand or sentenced) should as a rule not be held in institutions for adults but in facilities specially designed for this age group. The CPT considers that when, exceptionally, they are held in prisons for adults, juveniles should always be accommodated separately from adults, in a distinct unit. Further, adult prisoners should not have access to this unit. That said, the Committee acknowledges that there can be arguments in favour of juveniles participating in out-of-cell activities with adult prisoners, on the strict condition that there is appropriate supervision by staf. Such situations occur, for example, when there are very few or only one juvenile ofender in an establishment; steps need to be taken to avoid juveniles being placed de facto in solitary confnement.
Paragraph 103
Juveniles detained under criminal legislation should, in principle, not be held with juveniles deprived of their liberty on other grounds. Male and female juveniles who are placed in the same institution should be accommodated in separate units, although they may associate for organised activities during the day, under appropriate supervision. Special attention should be paid to the allocation of juveniles belonging to diferent age groups in order to accommodate their needs in the best way. Appropriate measures should also be taken to ensure adequate separation between these age groups in order to prevent unwanted
infuence, domination and abuse.
The European Rules for young ofenders state that young adult ofenders may, where appropriate, be regarded as juveniles and dealt with accordingly. This practice can be benefcial to the young persons involved but requires careful management to prevent the emergence of negative behaviour. In this respect, the CPT considers that a case-by-case assessment should be carried out in order to decide whether it is appropriate for a particular inmate to be transferred to an adult institution after reaching the age of majority (i.e. 18 years), taking into consideration the remaining term of his/her sentence, his/her maturity, his/her infuence on other juveniles, and other relevant factors.
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa
26. Separation of categories of detainees
he State shall ensure that detaining authorities hold pre-trial detainees separately from the convicted prison population. They shall also ensure that detaining authorities take the necessary measures to provide for the special needs of vulnerable groups/persons, in accordance with Part 7 of these Guidelines.
31. Children
d. Safeguards for police custody and pre-trial detention
If police custody or pre-trial detention of a child is absolutely necessary:
(...)
ii. Children shall be detained separately from adults, unless it is in their best interest to be kept with family members also detained. Female children shall be held separately from male children unless it is in their best interest to be kept with family members also detained.
32. Women
b. Safeguards for arrest and detention
If arrest, custody and pre-trial detention is absolutely necessary, women and girls shall:
ii. Be held separately from male detainees.
Council of Europe, Recommendation CM/Rec(2012)12 of the Committee of Ministers to member States concerning foreign prisoners, October 2012
Good order, safety and security
32.1. Prison staff shall ensure that good order, safety and security are maintained through a process of dynamic security and interaction with foreign prisoners.
32.2. Prison staff shall be alert to potential or actual conflicts between groups within the prison population that may arise due to cultural or religious differences and inter-ethnic tensions.
32.3. To ensure safety in prison, every effort shall be made to enhance mutual respect and tolerance and prevent conflict between prisoners, prison staff or other persons working or visiting the prison, who come from different backgrounds.
32.4. The nationality, culture or religion of a prisoner shall not be the determinative factors in the assessment of the risk to safety and security posed by such prisoner.
Questions for monitors
Within the institution, who decides the placement of the detainees, and on what basis?
Are untried detainees kept separate from convicted detainees? Do they benefit from a regime that is appropriate to their status?
Are minors held in a specific institution? Are they effectively kept separate from adults?
Are young adults kept separate from the rest of the prison population? Do they benefit from a special regime?
Are women effectively kept separate from men? Do they benefit from the same conditions of imprisonment?
Are persons detained in connection with their immigration status kept separate from people awaiting trial or serving a prison sentence? Do they benefit from a regime adapted to their status?
Are separation measures taken when the physical or moral integrity of a detained person is threatened? If so, are such measures decided with the consent of the people concerned?
Are some detainees separated from the rest of the prison population against their will?
Can a detainee request and be granted separation from other inmates?
Are transgender detainees allocated accommodation placement based on their perceived gender identity?
Are LGBTI detainees systematically separated from other detainees? If so, how are they identified, and is their consent required to separate them from the other detainees?
Are some inmates separated from the rest of the population because of their ethnic, religious or other such considerations? If so, what is the justification for the separation?
Are certain detainees or groups of detainees kept separate from the rest of the prison population for reasons other than their protection?
Do the wings or buildings specifically allocated to certain categories of detainees offer similar material conditions to those in the other parts of the institution?