Arbitrary Deprivation of Liberty and the Pandemic

Dr. Elina Steinerte

Covid - 19 Prison Overcrowding

Dr. Steinerte examines the backsliding of individual liberty in a flawed Indian criminal justice system, amplified by the COVID – 19 pandemic. She makes a case for reforming the current detention system to make it more compliant with international standards and to make detention the exception rather than the norm.

It has been about a year since we all have had to come to terms with a new way of living in the shadow of the Coronavirus (COVID-19). This has brought about a profound change in the lives of everyone and the restrictions brought in by so many governments around the globe have given most of us a new appreciation for the right to personal liberty, embodied in Articles 9 of the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The restrictions have been vast and diverse, but most have included various forms of lockdown measures requiring whole populations to stay at home, save for very basic necessities. There have been curfews introduced in addition to lockdown measures which have completely confined us to our homes for certain periods, no exceptions. There have also been strict quarantine measures in many countries allowing people to remain only in a designed place, usually a hotel, for a set period and the leaving of these premises is not permitted for any reason. All these measures, I believe have given us a real appreciation of just what the right to personal liberty means to each one of us as, by and large, it is the first time we have experienced such severe restriction upon this right imposed and for such a long period of time.

It is different of course for those who have had their liberty deprived in the criminal justice context as they have had to face these additional measures introduced by the governments whilst already being in place of detention. This however has posed whole set of new challenges for both the authorities as well as the detainees themselves. People deprived of their liberty, such as prisoners and individuals in other places of deprivation of liberty, have been identified by the World Health Organisation as more vulnerable to COVID-19 than the general population because of the confined conditions in which they live in very close proximity to each other over prolonged periods of time. Additionally, let us not forget that in some 120 countries worldwide prisons operate with over 100% of their capacity which means that these prisons are severely overcrowded. How would one go about implementing such measures as social distancing in such circumstances is incomprehensible. It is, therefore, not surprising that in the wake of the pandemic, a rising number of states have been and continue to review their prison populations with the view of releasing detainees so as to reduce the numbers to allow a better chance in fighting the virus. Thus, in 2020 prisons across India were set to release at least 34,000 prisoners, both remand and convicted, on interim bail and emergency parole following the order of the Supreme Court to all states to consider these forms of early release to reduce overcrowding. In Indonesia, over 36,000 prisoners were released early, including those convicted of drug offences who had served 5-10 years of their sentence; prisoners over the age of 60; prisoners with chronic illness; prisoners who had served two-thirds and juveniles who have served half their sentence. The Malaysian authorities stopped pronouncing custodial sentences as punishment for violations of the Movement Control Order. 

The overcrowding however remains a serious concern worldwide and India is no exception to this sad reality. In August 2019 when the Human Rights Committee issued its list of questions to India prior to reporting under the ICCPR (CCPR/C/IND/QPR/4), it made its concern over overcrowding clear by requesting India to report on ‘measures taken to address overcrowding in most prisons, including severe overcrowding in a number of states such as Chhattisgarh’. In the same document, the Committee also requested India to address ‘measures taken to effectively address prolonged pretrial detention, which often exceeds the duration of any sentence a suspect might receive if convicted, and the very high proportion of “undertrial” prisoners (those awaiting trial or sentencing) among the prison population’. Indeed, currently the World Prison Brief places India’s prisons at over 118% occupancy and notes that of these, 69.1% are pre-trial detainees. 

The worldwide trend to overuse pre-trial detention has been well reported with some 70 countries having more than 40% of their entire prison population composed of pre-trial detainees and some 50 countries owing half of their prison populations to their use of pre-trial detention. It is not a phenomenon confined to one geographical region of the world; it is indeed a world-wide trend. According to international human rights law however pre-trial detention should only be resorted to in exceptional cases. The Working Group on Arbitrary Detention (WGAD) explains that the requirement that ‘it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement” means that personal liberty is recognized as a principle and detention as an exception in the interests of justice. This means that every case of pre-trial detention must be based on an individualized determination that it is reasonable and necessary considering all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime. Therefore, the reasons justifying pre-trial detention in international law are narrowly construed, aimed at bolstering the requirement of pre-trial detention being an exception. If such is not the case, imposition of detention pending trial may be arbitrary under international law. 

Taking these requirements against the backdrop of the worldwide pandemic and the numerous measures introduced to combat it, it is perhaps not surprising that the calls to curb the current pre-trial detainee population as well as not to add to it further have been widespread among the international and regional human rights bodies. This is entirely reasonable as in the circumstances of the current pandemic, the already narrow justifications for pre-trial detention in international law have arguably shrunk further. Reasons such as risk of absconding, for example, have become practically impossible in the light of the virtual shutdown of travel worldwide. Moreover, imposing pre-trial detention in the current context means also exposing individuals to a heightened risk of infection by being held in closed facilities which are often overcrowded. The resorting to pre-trial detention currently, therefore, should become even less frequent. This is exactly what the WGAD has urged States globally to implement via its Deliberation No 11 on the on prevention of arbitrary deprivation of liberty in the context of public health emergencies: ‘The current public health emergency puts an additional onus of consideration upon the authorities, as they must explain the necessity and proportionality of the measure in the circumstances of the pandemic’. 

Many countries have followed the call with national authorities introducing temporary measures to impose measures alternative to detention such as bail and other sureties. While commendable, one cannot help but notice the temporary nature of these measures which suggests that these are introduced ‘only until we get back to normal’. But such an approach ignores the fundamental issue at hand: the vast majority of the cases wherein pre-trial detention is imposed do not comply with the requirement of exceptionality of this measure required by international law. In fact, if the world would have followed the guidance of international law regarding the pre-trial detention, most of the prisons which currently report shocking overcrowding rates, would only have about a half of their detainee population. This in turn would put them on a much stronger footing vis-à-vis outbreaks of COVID-19 infections which some prisons are currently reporting to be at horrifying levels. Above all, the respect due to the right to personal liberty would be ensured.

So, what would be my proposal for a better future after COVID? I propose to implement what we have already agreed to at the international level, but we find ever new and ingenious reasons to justify our failure to implement the guidelines provided by the WGAD. The right to personal liberty is precious, a lesson we all have been taught by the pandemic. Let us make sure that it is not taken for granted.

Dr. Elina Steinerte is the sitting Vice Chair of the Working Group on Arbitrary Detentions (WGAD) at the Office of the United Nations High Commissioner for Human Rights (OHCHR) and the co-author of ‘The Optional Protocol to the UN Convention Against Torture’.