Author: Elisabeth Mayer (Vienna Master of Human Rights)
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I am writing this blog post in the midst of just another lockdown here in Vienna. As a twentysomething I have never experienced anything like this. Never before has my freedom, which I had taken for granted, been curtailed to a similar extent. Suddenly I am not allowed to go where I please anymore. Instead, I can only leave the house for very specific reasons and have to wear a mask in most places I go. One year into the pandemic we somehow got used to these rules and they sneakily became part of our daily lives. Yet, when all of this started a year ago, certainly some people thought to themselves or even uttered half-jokingly: ‘Now we got a taste of how life in prison must feel like’.
Isolating the Isolated
Sure, the impotence we might experience in the face of these state-enacted rules limiting our usual lives, including the standstill of our entire social life, forms part of detainees’ everyday lives. However, obviously these institutions have seen further restrictions as well, meaning that an already severely closed-off environment has become even more isolated. In several European countries visits by relatives, rehabilitative measures (e.g., work, education, trainings, therapies) and prison leaves were suspended. In some countries even the inspection visits by monitoring mechanisms to ensure compliance with the prohibition of torture, degrading and inhuman treatment in closed institutions, ceased.
Thinking about the consequences
While the negative impact of suspending monitoring is obvious, the other measures deserve a second look. Clearly, maintaining contact to relatives is essential for a detainee’s psychological well-being. On the one hand by providing them with loving physical contact or packages of food and clothing, on the other hand by serving as a bridge to the detainee’s usual social environment and supporting social reintegration after imprisonment. The reduction or halt of rehabilitative measures is highly problematic, as ‘the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.’ (Art. 10.3, International Covenant on Civil and Political Rights) In addition, a lack of rehabilitative measures, such as therapies or trainings, can not only impact detainees’ mental health negatively, but also their chances to be released, since accomplishing these activities is a requirement for conditional release. So are different levels of relaxations, e.g., leaving the closed part of an institution with or without staff, which largely did not take place either due to Covid-19.
The art of proportionality
All of the above was justified with the legitimate aim of preventing the spread of Covid-19 within closed institutions. Since physical distancing is challenging, sometimes impossible in notoriously overcrowded prisons, once a detainee is infected with the virus, its spread within the facility is difficult to control. Yet, it is the state’s responsibility to ensure the health and safety of persons deprived of liberty. While it has the obligation to protect detainees from such harm, the state holds the obligation to fulfil their right to family life, procedural rights and, paradoxically, the right to health itself – thinking of the impact of the measures on mental health. During the current pandemic, all of these rights were subject to limitation in one way or another. It seems like the right to health overrode other human rights. This is nothing new in human rights law, as in practice it often requires the balancing of different, contradicting rights. That said, the state nevertheless has to ensure that the interference with certain human rights is proportionate to the aim. Are the measures suitable to achieve the legitimate aim of preventing the spread of Covid-19? Are they necessary? Are there less intrusive alternatives?
Good practice, bad practice
The answer is: it depends. On the one hand, it obviously depends on the measure we are referring to. On the other hand, however, it depends on the institution you are lucky or unlucky to be in. Since the measures tend to be based on quite general legislation, its implementation frequently lies with the respective facility’s management. This flexibility can be used for better or for worse. Some institutions banned visits by relatives without providing alternative measures. Others offered extra credit for phone calls and organized the necessary equipment for video calls to compensate the discontinuation of physical contact with virtual alternatives. Some suspended work, educational, sports and recreational activities, at times even yard exercise, while others managed to maintain all of these by reducing the usual group size and preventing the mixing of different groups. To counterbalance the halt of prison leaves, some facilities made sure that there was additional material for inside activities like board games, cards or painting supplies and that more time could be spent in the open air or doing sports. Others did nothing of the kind, resulting in particularly long, dull and psychologically straining days for detainees.
The bottom line here is, that sometimes one has to choose the lesser of two evils. Not seeing your family for months is certainly devastating. Yet, putting your and other’s life and health at risk from Covid-19 seems worse. But this is no zero-sum game. It is more than choosing between right and wrong. There is always a margin of appreciation, however small it may be. At times management and staff made use of their discretionary power to moderate the negative impact of the measures on detainees’ lives the best they could. They chose to look for a way of making a terrible situation a little less evil.
Name of the institution: Ludwig Boltzmann Institute of Fundamental and Human Rights
Description: This Vienna-based institute has expertise in various areas related to human rights, namely Human Dignity and Public Security, Human Rights in Development Co-operation and Business, European Neighborhood and Integration Policy, Women’s Rights, Child Rights, Anti-Trafficking and Digital Rights. It combines research with practical human rights work, such as training members of the executive and judiciary or monitoring state institutions.
Tasks and challenges: As a consultant to the Human Dignity and Public Security Programme Line. I was working in the framework of the Project ‘Open research behind closed doors: Assessing the impact of COVID-19 measures on persons deprived of liberty with psychosocial and intellectual disabilities’. In cooperation with the staff of the Human Dignity and Public Security Team, my tasks encompassed: organizing and moderating meetings and workshops – incl. communication with the partner organisations, developing survey and interview questions, organizing and conducting interviews, analyzing the data, and drafting the project outcome documents.
It is challenging to work on the topic of preventive detention. On the one hand, it is a rather complex and specialized niche of criminal law. On the other hand, both topics, detention and mental health, can be burdening to deal with – especially when speaking to persons concerned, their relatives and experts working in the field about their experiences. Besides these content-related challenges the responsibility and diversity of the tasks were rather demanding in the beginning.