Modern Trends in the Development of the Standard Minimum Rules for the Treatment of Prisoners

The substance of the ongoing processes of discussion regarding the revision of the United Nations (UN) Standard Minimum Rules for the Treatment of Prisoners (the Rules, SMR) is of clear scientific and practical interest. This is, among other things, due to the fact that the prospects for their amendment also reflect the prospects for reforming national legislation and practice. Therefore, we plan to provide an overview of the current trends in the development of the SMR. To this end, the author has examined working documents and resolutions of UN structural divisions, including the United Nations Office on Drugs and Crime, and has engaged with certain experts who are members of the open-ended intergovernmental expert group (IEGM) tasked with the revision of the Rules.

The Standard Minimum Rules for the Treatment of Prisoners were the result of a lengthy development process, which began in 1926 under the International Penal and Penitentiary Commission (subsequently the International Penal and Penitentiary Foundation). In 1933, the results of the Commission’s work were revised, and subsequently, in 1949, they were finalised by a Special Committee of Experts. Just before its dissolution in 1951, the Commission submitted a draft of the Rules, which were finally adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955. In 1957, they were approved by the UN Economic and Social Council.

Despite the fact that the Rules had no binding legal force, they were soon recognised as the benchmark against which all other standards for the treatment of prisoners were to be measured. Over the past nearly 60 years, they have magnificently stood the test of time. On the whole, they are formulated in a simple and accessible form, and the principles embodied within them remain as relevant today as they were when they were first approved.

Nevertheless, no legal instrument, having withstood such a long period of testing, could remain responsive to the realities of life without undergoing amendments. This is especially true in the sphere of human rights standards, which have increased significantly since that time. As research shows, the SMR contains a considerable number of rules that are outdated; furthermore, there are observable gaps in their regulatory potential, which is linked to the new challenges that have arisen for penal systems in all countries when ensuring the observance of prisoners’ rights.

Raising the question of the need to revise the Rules

From 12 to 19 April 2010, the Twelfth UN Congress on Crime Prevention and Criminal Justice (hereinafter referred to as the Congress) was held in Salvador, Brazil. Many global issues concerning the fight against crime were raised at the Congress, and during its proceedings, the Salvador Declaration “on comprehensive strategies for responses to global challenges: crime prevention and criminal justice systems and their development in a changing world” was adopted.

The General Assembly, having summarised the work of the Congress in paragraph 10 of its resolution 65/230 of 21 December 2010, entitled “Twelfth United Nations Congress on Crime Prevention and Criminal Justice”, requested the Commission on Crime Prevention and Criminal Justice to establish an open-ended intergovernmental expert group (IEGM) for the exchange of information on best practices, as well as on national legislation and applicable international law, with the aim of revising the existing SMR so that they take into account the latest scientific developments and best practices in the field of penal institution operations, and to submit recommendations to the Commission regarding possible subsequent actions.

It should be noted that the need to revise these nearly sixty-year-old Rules had been discussed for a long time, with observers pointing out that certain provisions were outdated and did not meet modern requirements.

Preparation for the revision

As a preparatory step for the IEGM, which met for the first time in Vienna in January 2012, a meeting of a high-level expert group on the revision of the SMR was held in Santo Domingo from 3 to 5 August 2011. The meeting was attended by representatives of governments and judicial bodies from 15 Latin American and Caribbean countries, as well as observers from the International Penal and Penitentiary Foundation, the Caribbean Association of Heads of Corrections and Prison Services, the Organization of American States, the Latin American Institute for the Prevention of Crime and the Treatment of Offenders, and the Office of the United Nations High Commissioner for Human Rights.

The high-level expert group was tasked with identifying best practices for implementing the SMR in Latin American and Caribbean countries, as well as exploring areas where the SMR might need to be updated or supplemented. The basis for the meeting’s activities was drawn from the results of the workshop on “Reviewing UN and other best practices in the treatment of prisoners in the criminal justice system”, which was organised during the twelfth Congress.

It was emphasised that no steps should be taken that might compromise the integrity of the Rules, which are considered and recognised globally as not having become obsolete and as retaining their relevance. At the same time, the experts concluded that acknowledging new trends and currently applied best practices would be beneficial. It was suggested that this could be achieved through the use of regional instruments, such as the “Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas” (approved by the Inter-American Commission on Human Rights during its 131st regular session, 3–14 March 2008), which could serve as a basis for a critical interpretation of the SMR.

Meanwhile, other experts expressed the opinion that the Rules, which in 1957 were intended only to “set out what is generally accepted as being good principle and practice in the treatment of prisoners and the management of institutions, on the basis of the modern consensus and taking into account the main elements of the most satisfactory systems at present” (preliminary remarks to the SMR), should ideally be revised in light of the numerous changes in the fields of human rights and penitentiary science over the past 60 years. They also noted that the language of the Rules was outdated and that some provisions were insufficient and no longer acceptable. Among those experts who advocated for a revision of the Rules, some preferred a complete overhaul, although most acknowledged the difficulty of reaching a consensus on an entirely new set of Rules. As a compromise, a number of experts suggested a “targeted” revision of the Rules, focusing primarily on making the most urgent and necessary amendments.

The meeting included eight main sessions to discuss key topics related to the treatment of prisoners in Latin America and the Caribbean. As a result of the meeting, a report was compiled (http://www.unodc.org/documents/justice-and-prison-reform/Reports/Report_High_Level_EGM_Santo_Domingo_3-5_August_2011_English.pdf), which included the following blocks of problematic issues.

1. Pre-trial detention. It was pointed out that in most countries, there is a large number of persons awaiting trial while in detention. The experts noted that one of the reasons for this is the existence of the legislative definition of a “reasonable period” during which a person can be held in pre-trial detention; therefore, it was proposed to develop a more precise term with the aim of instilling in representatives of prosecutorial and judicial bodies an awareness of the negative consequences of delaying the process.

It was also noted that, frequently, the term of detention exceeds that permitted by legislation; therefore, it is necessary to incentivise authorities to ensure the process is not delayed without real justification. The need to solve the problem of access to legal aid for those held in pre-trial detention was highlighted. The issue where detention is used as the norm rather than the exception requires resolution. Examples were provided of the successful use of alternative measures such as fines, supervision, the requirement to report to a specific authority, and forms of house arrest. Negative facts regarding the influence of the “court of public opinion” when selecting preventive measures were stated, especially in countries with small populations.

2. Prison overcrowding. Many experts agreed that the most effective method of combating this phenomenon is to ensure that judges use imprisonment as a punishment only in exceptional cases. In other words, rather than seeking “alternatives to imprisonment”, the focus should be on ensuring that imprisonment is used only in cases of genuine necessity. With this in mind, the issue of the financial and social cost of the limited capabilities of prisons in relation to changing an individual must be raised.

The need to ensure that the government is held accountable for providing a sufficient number of places in penal institutions is emphasised. Preference should be given to low-security prisons (including open prisons and prison farms) over more expensive high-security prisons, as many prisoners could be safely held in the former. To achieve this, a sound risk assessment system must be organised, which would also help ensure that individuals are held in more appropriate low-security conditions within a single prison.

3. Healthcare. Prison health is a matter for the entire population; in this regard, it is essential that in countries where prison healthcare is the responsibility of the authority managing the prisons, the closest possible links with the national healthcare system be established. The ministry responsible for health must be aware of the consequences for the population of poor medical care in prisons. Attention was drawn to the frequent detention of individuals with mental illnesses in prisons, despite the fact that the staff of these institutions are not trained to deal with them. The need to provide terminally ill individuals with the opportunity to spend their final days in freedom was pointed out.

4. Special categories of prisoners. The following special categories were identified: prisoners serving life sentences; those sentenced to very long terms of imprisonment; those held in maximum-security conditions; those requiring medical care for their physical or mental health; foreign prisoners; members of minorities; elderly prisoners; women and minors.

These groups cannot be viewed as uniform in the sense that all individuals within them differ in their personal characteristics, which is what allows them to be classified into one or another special group. Therefore, they cannot all be categorised under the single label of “special”, as everything related to their detention cannot be identical. The main emphasis was placed on the fact that the suffering of imprisonment should not be aggravated by their specific personal characteristics or situations. This applies, in particular, to two groups. The first includes those who are partially vulnerable among a large number of men, in security conditions, sometimes in a violent or unsafe environment in prison; this refers to women, youth, the elderly, lesbians, gays or transgender persons, foreigners, the sick, and those belonging to minorities. The second includes those held in higher-security conditions due to the type of crime they committed, the length of their sentence, or the harm they have caused to society or within the prison. They also require special safeguards to ensure that their suffering in detention does not increase unnecessarily. Issues regarding the detention of foreigners, young people, and the elderly were also discussed.

5. Prison staff. A great deal of attention was paid to improving the selection process for prison staff and their training before and during their service in the respective institutions. The experts focused primarily on the example of the Dominican Republic, namely, the new model of prison management in that country. Key to the new model are not the new prison buildings (though that is also important), but new staff, who must undergo a one-year training programme before being allowed to work. Two points regarding the implementation of the new model were highlighted: a) staff were primarily selected from young people with high motivation and no previous experience in the police or other militarised bodies; b) they had to study at a prison academy.

6. Treatment of offenders and their educational and rehabilitative programmes. Attention was primarily focused on exchanging experiences of best practices in this area between states. In particular, systems of risk assessment were discussed, which would ensure that prisoners are placed in institutions with the lowest possible security level, as well as systems for assessing educational levels, skills, and potential. It was noted that it is of great importance that the skills prisoners learn in an institution be useful for life in freedom, that is, after their release. In this regard, the obligation to employ former offenders was mentioned. Problems regarding the involvement of civil society representatives in the education of prisoners were raised, as well as micro-enterprises that would provide opportunities to develop the skills of offenders in a direction suitable for life in freedom, the involvement of commercial structures in prison labour, and appropriate remuneration so that a portion of the wages could be sent to relatives.

7. External oversight of prisons. It was emphasised that the best oversight is oversight by groups as open as possible, composed of representatives of civil society who participate in activities inside the institutions and are aware of what is happening within them. A discussion took place regarding various forms of external oversight available in the regions and how best to improve them.

The Secretariat also prepared a document entitled “Observations and comments on the United Nations Standard Minimum Rules for the Treatment of Prisoners” (http://www.unodc.org/documents/commissions/CCPCJ_session21/ECN152012_CRP1eV1251074.pdf), defining for each rule in the SMR the corresponding achievements in internationally recognised best practice and highlighting references to the latest international instruments.

A series of consultations with international experts was conducted throughout 2011 with the aim of providing additional information to the Secretariat for the Background Note, which is intended to assist the Meeting of the Open-Ended Intergovernmental Expert Group (hereinafter referred to as the Meeting) in discussing the SMR and preparing its recommendations regarding possible future actions at the twenty-first session of the Commission on Crime Prevention and Criminal Justice in 2012. Among these consultations was the aforementioned meeting in Santo Domingo, as well as the meeting on prison health (4–5 October 2011, Abano Terme, Italy), which took place in parallel and was organised by the World Health Organization, where consultations were held to prepare comments on rules 22–26, 32, 52, and 82 of the SMR.

In order to prepare the ground for discussion at the Meeting, which, as already indicated, took place in Vienna from 31 January to 2 February 2012, the Secretariat requested Member States to provide information on best practices, as well as national legislation and existing international law, which might be useful for the revision of the existing Rules. 28 countries responded to this request, among which was Ukraine. Nevertheless, the Ukrainian examples of best practices, as well as statements regarding the revision of the SMR, unlike those from most of these countries, were not included in the Background Note, which served as the base document for the Meeting’s work (http://www.unodc.org/documents/justice-and-prison-reform/AGMs/Background_note.pdf). Furthermore, it must be acknowledged as humiliating that Ukraine was not represented by a single delegate at the Meeting, which was attended by 143 people representing 52 UN Member States.

Work of the working group on the revision of the Rules

Given the diversity of the experts’ views on the need for revision, 4 possible options for resolving the problem regarding the revision of the existing SMR were identified, so that they reflect the latest changes in correctional methodology and best practices, and to present recommendations to the Commission on Crime Prevention, including a possible recommendation to include further discussion of the revision of the Rules as an additional agenda item for the Thirteenth UN Congress on Crime Prevention and the Treatment of Offenders, which will take place in 2015. They are as follows.

1. Taking into account that the idea of drafting a convention on the treatment of prisoners has been expressed repeatedly (see, for example, the Fourth UN Congress on the Prevention of Crime and the Treatment of Offenders, Kyoto, Japan, 17–26 August 1970, Report prepared by the Secretariat, A/CONF.43/5 (1971); and the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August – 7 September 1990, Report prepared by the Secretariat, A/CONF.144/28/Rev.1 (1991)) and that it was last discussed in 2010 at the Twelfth UN Congress in Salvador, the Meeting could consider the option of drafting a legally binding instrument, under which State Parties would have obligations to ensure certain standards in places of detention and agree to inspection visits within the framework of a peer review system.

2. Another option could be a complete overhaul of the Rules and their substantive reformulation. A model for such an option could be the European Prison Rules of 2006. In accordance with such a model, the revised SMR would include the following main sections:

• a preamble with references to all human rights standards listed in the annex;

• a new section containing basic principles regarding the treatment of prisoners, which could be based on the Basic Principles for the Treatment of Prisoners;

• a section on conditions of imprisonment, which would include many rules contained in the existing Part I (Rules of General Application), as well as in Section A (Sentenced Prisoners) of Part II (Rules Applicable to Special Categories);

• a section on medical services;

• a section on the maintenance of good order;

• a section on management and staff;

• a section on inspection and monitoring;

• a section on the rights of pre-trial prisoners;

• a section on the specific rights of sentenced prisoners.

It would be necessary to make a decision on the scope of the rules. In accordance with such a decision, it should be determined whether to include new sections containing rules regarding groups such as the mentally ill, detained immigrants, persons held in police stations or other places of detention, persons detained on grounds unrelated to the commission of any criminal offence, and persons detained without any specific charge.

According to this option, it could be expected that Member States might wish to substantively revise a number of existing rules, in particular, the scope of the Rules (rules 4, 94, and 95), the basic principle in rule 6; classification (rule 8); accommodation (rule 9); medical services (rules 22–26 and 82); the prohibition against punishing a prisoner twice for the same offence (rule 30.1); the prohibition of corporal punishment (rule 31); the duty of a medical officer to visit prisoners subject to certain punishments daily (rule 32.3); the use of instruments of restraint (rules 33 and 34); the possibility of making requests and complaints (rule 36); prisoners’ contact with the outside world (rules 37–40); religion (rule 41); the transfer of prisoners (rule 45); institutional personnel (rules 46–54); inspection (rule 55); the suffering associated with imprisonment (rule 57); the purpose and justification of a sentence of imprisonment (rule 58); regimes for prisoners and their treatment (rules 59–78); relations with the outside world and post-release care (rules 79–81 and 83); various rules regarding pre-trial prisoners, including the right to be accommodated at night in individual cells, the right to receive food from outside, the right to wear civilian clothing, the right to use the services of one’s own doctor (rules 84–93); rules regarding civil prisoners (rule 94), and persons detained without charge (rule 95).

All rules should be reformulated to ensure their gender-neutral nature and significantly reworked in terms of updating terminology. The new text should also be drafted taking into account the obligations under the Convention on the Rights of Persons with Disabilities.

This option would be linked to the use of significant resources by Member States, the Commission on Crime Prevention and Criminal Justice, and the Secretariat. In all likelihood, this process would be lengthy, and its results would not be guaranteed.

3. Taking into account the complexity of a complete revision of the Rules and the risk of lowering the level of certain standards enshrined in the Rules, the Meeting considered the option of reducing the substantive reworking of the text of the Rules to the necessary minimum. It is assumed that this necessary minimum should include the following:

• a new preamble;

• a specification of the scope in rules 4, 94, and 95, including within it all persons deprived of liberty, whether on criminal, civil, or administrative grounds (e.g., the mentally ill, detained immigrants, persons held in police stations and other places of detention, persons detained on grounds unrelated to the commission of any criminal offence, and persons detained without any specific charge);

• an expanded version of rule 6, including a new set of basic principles for the treatment of prisoners applicable to the Rules as a whole;

• a number of rules regarding medical services (rules 22–26 and 82) reflecting changing standards regarding the role of the doctor, the principle of confidentiality, and medical ethics;

• a detailed elaboration of rules 31–33, especially in connection with the application of disciplinary measures involving strict/solitary confinement, and the inadmissibility of using such a punishment as a reduction of diet;

• rules regarding the protection of vulnerable prisoners, especially rule 36 on the possibility of making requests and complaints;

• an addition to rule 37 of a provision on the right to access a lawyer, particularly for sentenced prisoners;

• a specific reference in rules 36 and 55 to the right of access to external channels for lodging complaints and a reference to the importance of external inspection;

• the replacement throughout the text of outdated terminology, especially in the context of rules 82 and 83;

• the consideration in all rules of the provisions of the Convention on the Rights of Persons with Disabilities.

Although these changes were deemed the most important, there was nevertheless a probability that agreement on the reworking of the Rules could still be complex and problematic. It was assumed that Member States might also disagree with the above list and might wish to reopen the discussion on other rules. In that case, this would mean that this option would be transformed into option 2.

4. The Meeting could also recognise the unanimous opinion that the Rules have stood the test of time and still remain relevant. Based on this, the Rules could include a preamble with a list of the foundational principles contained in international treaties, standards, and norms regarding the treatment of prisoners, with reference to international law and national legislation.

The commentary to the Rules, subject to further development, could be based on the document “Observations and comments on the United Nations Standard Minimum Rules for the Treatment of Prisoners”, which contains references to international law and standards regarding the use of imprisonment, as well as the current understanding of what constitutes best practice in the field of prison management. In this context, experts at the meeting in October 2011 referred to the publication “Making standards work, an international handbook on good prison practice”, Penal Reform International, United Kingdom, 1995.

Instead of beginning a lengthy revision process, efforts could be concentrated on the implementation of the Rules and their interpretation in the context of existing international law regarding imprisonment. To facilitate the monitoring of the implementation of the Rules, the question of a possible update to the Procedures for the Effective Implementation of the Standard Minimum Rules for the Treatment of Prisoners (http://www.unodc.org/pdf/compendium/compendium_2006_ru.pdf) could be considered. These procedures represent methodological recommendations for incorporating the provisions of the SMR into national practice.

As a result of the Meeting’s work, a general agreement was reached that the Standard Minimum Rules for the Treatment of Prisoners have stood the test of time and are universally recognised as the minimum standards for the treatment of prisoners (http://daccess-dds-ny.un.org/doc/UNDOC/GEN/V12/509/07/PDF/V1250907.pdf?OpenElement). A consensus was also reached that any changes to the Rules should not lower the level of existing standards.

A discussion was held regarding the aforementioned four options, which were, to a certain extent, not mutually exclusive and could quite well be implemented together (http://www.unodc.org/documents/justice-and-prison-reform/AGMs/Meetings_Report-E-.pdf). Some experts emphasised that the implementation of standards would be facilitated by a new convention given the obligation of State Parties to comply with its provisions, while others noted that the drafting of such a document could be a lengthy and costly process. In this regard, it was recognised that the proposal to draft a convention on the treatment of prisoners and their rights had been put forward as early as 1970, if not earlier. Despite the recognition of the potential benefits of such a convention—and some participants supported the drafting of a legally binding document—others concluded that at the present moment, there is still no consensus on such an initiative.

All participants emphasised the immense significance of the SMR in stimulating not only penal reform but also the development of legislation, policy, and practice. Furthermore, as noted, they are widely used as a starting point by various bodies established under human rights treaties. Therefore, before making any serious changes to their structure and content, which could also require significant time and resources, maximum caution should be exercised. In other words, one should not resort to a complete overhaul of the Rules or significant reformulation.

In light of what has been said, the majority of participants expressed their preference for and support of the third and fourth options.

Throughout the discussion, special attention was paid to the need for further international efforts to improve the monitoring and review of the implementation of the Standard Minimum Rules. In this regard, several experts commented on their own programmes aimed at providing assistance to other Member States in their activities, emphasising the importance of technical cooperation.

Some speakers also spoke about the need for a complete revision of the Procedures for the Effective Implementation of the Standard Minimum Rules for the Treatment of Prisoners.

A number of speakers suggested that a substantial update of the wording of certain provisions of the SMR could address the following issues:

a) expanding the scope of the Rules to include all persons deprived of liberty, whether on criminal, civil, or administrative grounds (rules 4, 94, and 95);

b) expanding the general principles in both paragraphs of rule 6, possibly taking into account the Basic Principles for the Treatment of Prisoners;

c) introducing amendments to the rules regarding medical services and healthcare, including consideration of the issue of confidentiality of medical records and the role of medical staff in relation to disciplinary measures (rules 22–26, 32, and 82);

d) reflecting in rule 44 the duty to investigate all cases of death while in custody, as well as any signs of torture of prisoners or inhuman or degrading treatment, and reports thereof;

e) reviewing rules 31–33 regarding strict and solitary confinement, and the inadmissibility of applying such a punishment as a reduction of diet;

f) expanding the provisions regarding the protection and special needs of prisoners in vulnerable situations, for example, elderly prisoners; foreign national prisoners; members of ethnic and racial minorities and indigenous peoples; transgender prisoners, etc.;

g) adding to rule 37 the right of all prisoners to access a lawyer;

h) including in rule 36 the right of access to external mechanisms for handling complaints;

i) increasing the importance of oversight and independent inspection (rules 36 and 55);

j) promoting the return of offenders to society as one of the main goals of the provisions regarding the treatment of persons sentenced to imprisonment (rules 65 and 66), including wider use of the practice of temporary leave from prison and parole programmes;

k) replacing outdated terminology, in particular in rules 82 and 83;

l) linking the SMR with the provisions of the Convention on the Rights of Persons with Disabilities and the Bangkok Rules so as to avoid inconsistencies, and extending the application of the provisions of the Bangkok Rules regarding protection against violence and other non-gender-related issues to all prisoners;

m) expanding professional training and including questions related to the specifics of working in correctional institutions and human rights for all those who work with prisoners in various capacities, including prosecutorial staff, judges, and parole board members (rules 46–54).

Other suggestions made during the discussion concerned the need to better reflect the right to safety in prisons (both for staff and for prisoners, from harm caused by both prisoners and staff, including measures to prevent torture, deliberate self-harm, and suicide attempts); positive methods of work with a focus on normalisation as a key aspect of facilitating reintegration (contacts with the outside world, family visits, contact between mothers and children, the role of incarcerated fathers as parents); providing prisoners with civil rights, in particular the right to vote; and expanding and improving the wording of the SMR regarding religion, and including provisions providing for the mandatory exercise of judicial oversight for the purpose of potential case reviews, and the need to specifically highlight the role of civil society in the rehabilitation and reintegration of offenders.

Some proposals concerned the deletion of certain provisions from the SMR that are considered outdated, and the consideration of drafting a new protocol as an addition to the Rules in order to cover some aspects that are currently not fully addressed, particularly with regard to the protection of human rights. One clear example of such a possible deletion is rule 94, regarding civil prisoners, as it is considered to be at odds with subsequently adopted human rights provisions.

Another widely discussed issue was the importance of providing technical assistance in accordance with the SMR, with the aim of encouraging and facilitating the full implementation of the Rules by all Member States.

In view of the above, the Group of Experts recognised the need to revise not all, but only certain areas of the Standard Minimum Rules. The following preliminary areas for possible consideration were identified in order to ensure the reflection in the Rules of the latest scientific developments and best practices in the field of penal institution operations:

a) respect for the human dignity and human worth of prisoners;

b) medical services and healthcare;

c) disciplinary measures and punishments, including the role of medical staff, solitary confinement, and reduction of diet;

d) investigation of all deaths in custody, as well as any signs of torture of prisoners or inhuman or degrading treatment, and reports thereof;

e) protection and special needs of vulnerable groups of persons deprived of liberty, taking into account the situation in countries in difficult circumstances;

f) right to access legal representation;

g) complaints and independent inspection;

h) replacement of outdated terminology;

i) training of relevant staff in the application of the SMR.

Finally, many participants emphasised the fact that the expert group meeting was only the beginning of a very important process, which must be continued in order to finalise more concrete proposals for their further consideration by the Commission. Further developments will surely gain strong momentum following the twenty-first session of the Commission on Crime Prevention and Criminal Justice, which will be held at the end of April this year.