prison.gov.bdprison.gov.bd/prisonsite/assets/userfiles/files/ICRC grid … · Web viewThe revised UN Standard Minimum Rules for the Treatment of Prisoners (SMR or Nelson Mandela

Guide to the revised UN Standard Minimum Rules for the Treatment of Prisoners ‘Nelson Mandela Rules’

Internal ICRC guide to the revised UN Standard Minimum Rules for the Treatment of Prisoners ‘Nelson Mandela Rules’

The revised UN Standard Minimum Rules for the Treatment of Prisoners (SMR or Nelson Mandela Rules) were adopted by the UN Crime Commission in May 2015, approved by the UN Economic and Social Council in July 2015, and adopted by the UN GA on 17 December 2015.

The full SMR text can be found in all 6 UN languages at http://undocs.org/A/C.3/70/L.3.

The table below seeks to assist colleagues in disseminating, discussing and using the revised SMR/Nelson Mandela Rules. It should be used in conjunction with the text of the new Rules.

Navigating the revised SMR is a challenge. Although, in line with a decision made by States fairly early in the revision 1, not all Rules of the SMR were reviewed and revised, the order in which topics appear has changed, and therefore the numbering of pretty much all of the Rules has changed.

The first column of the table below (Current Rule No.) gives the new number of each Rule. The last column gives the old Rule number and indicates whether the content of the Rule has substantively changed. Please note that Rules where terminology but nothing else changed are not identified as ‘New’. (Examples of such changes of terminology are: medical officer → physician or other qualified health professional; he → he or she, institution→ prison, insanity and mentally abnormality→ prisoners with mental disabilities and/or health conditions, etc.)

The second column of the table gives the headings of the different sections in the Rules, and seeks to indicate the key new content and/or change in each Rule in summary form. Only the content of changed and new Rules is summarized, as the aim of the table is to highlight novelties and changes. For the unchanged SMR text you have to refer to the full text of the Rules.

It is important to note that, while the SMR are a soft-law instrument, elements found in them (most obviously the affirmation of the fundamental human dignity of the prisoner and the absolute prohibition of torture) represent obligations. Much of what is new to the SMR is almost by definition not new to other instruments, as the revision process was required to take into account existing international law and best practices. Some changes have a basis in treaties (eg expansion of the obligations with regard to prisoner records mirrors provisions in the International Covenant on Civil and Political Rights), others in the recommendations and observations of UN special procedures, others in professional ethical codes, etc. If you would like these references, please contact OP_PROT_DET.

1 The extent of the revision which could be proposed was restricted by mandate to the following: Respect for prisoners’ inherent dignity and value as human beings; Medical and health services; disciplinary action and punishment, including the role of medical staff, solitary confinement and reduction of diet; investigation of all deaths in custody, as well as of any signs or allegations of torture or inhuman or degrading treatment or punishment of prisoners; protection and special needs of vulnerable groups deprived of their liberty, taking into consideration countries in difficult circumstances; the right of access to legal representation; complaints and independent inspection; the replacement of outdated terminology; training of relevant staff to implement the Standard Minimum Rules. The mandate excluded any revision that would result in a lowering of existing standards.

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One can suspect that the well-known acronym SMR will continue to be used in practice, rather than ‘Nelson Mandela Rules’ (note that South Africa specifically wished them to be known as the Nelson Mandela Rules, not the Mandela Rules.)

Please send any comments or queries about the table to OP_PROT_DET.

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Current Rule No. Topic Previous Rule No. /New or UnchangedI. Rules of General Application

Basic Principles1 The dignity of the prisoner. An absolute prohibition of torture/IT. Safety

and security of prisoners, staff and various visitors must be ensured at all times.

(elements of 31 but applied broadly, not only to punishment)/ New

2.1, 2.2 Impartiality, non-discrimination, vulnerability and special needs, individualization. Protecting special needs is not discrimination.

(elements of 6.1, 6.2)/New

3 57/Unchanged4.1, 4.2 The primary (formerly, ‘ultimate’) justification of prison as a sentence is

not only to protect society against crime but to reduce reoffending. Emphasis is put on reintegration upon release. Bodies other than prison should be involved in this role. Social life, health and sport are added as elements in reintegration.

(elements of 58, 59)/New

5.1 60.1/Unchanged5.2 Reasonable adjustments should be made in order for prisoners with

disabilities to have full and effective access to prison life.New

Prisoner file management system6 The system should be standardized, electronic or paper, safeguarded

against illicit intrusion and modification.(elements of 7.1)/New

7 There is an increase in the information details which should be entered and it should be done upon admission. The aim is to establish a unique identity. Additionally should be included self-perceived gender; date/time/place of arrest; day and hour of transfer; visible injuries plus complaints of ill-treatment (IT); family members’ names; and children’s ages, location and custody status; emergency contact details; and other details of next of kin.

(elements of 6.2, 43.1)/New

8 Further details are to be registered during imprisonment, including essential information on the judicial process, assessment and classification reports; behavior and discipline; disciplinary sanctions; non-confidential requests and complaints, including complaints of IT; circumstances and causes of injuries and death; destination of remains.

New

9 Confidentiality of records, access by professionals and by prisoners New

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Current Rule No. Topic Previous Rule No. /New or Unchanged10 Use of information systems to generate reliable data on characteristics

of population, occupancy rates and to inform evidence-based decision-making

New

Separation of categories11 8/Unchanged

Accommodation12.1, 12.2 9.1, 9.2/Unchanged13 10/Unchanged14 11/Unchanged15 12/Unchanged16 13/Unchanged17 14/Unchanged

Personal hygiene18.1, 18.2 15, 16/Unchanged

Clothing and bedding19.1, 19.2, 19.3 17.1, 17.2, 17.3/Unchanged20 18/Unchanged21 19/Unchanged

Food22.1, 22.2 20.1, 20.2/Unchanged

Exercise and sport23.1, 23.2 21.1, 21.2/Unchanged

Health-care services (elements of 22-26) Term ‘medical officer’ replaced with ‘physician or other qualified health professional’

24.1 Healthcare of prisoners is a state responsibility. Same standards as available in community. Access to healthcare should be free and without discrimination on basis of legal status.

New

24.2 Continuity of care should be maintained through a relationship with local healthcare services, particularly for HIV, TB and other infectious diseases, drug dependence

(elements of 22.1)/New

25.1, 25.2 Emphasis is on an interdisciplinary team, adequate staff, clinical (elements of 22.1, 22.3, 24, 26)/New

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Current Rule No. Topic Previous Rule No. /New or Unchangedindependence, psychology as well as psychiatry. There are broader healthcare responsibilities of evaluation, promotion, protection and improvement of prisoners’ physical and mental health. Particular care should be paid to health issues bearing upon rehabilitation.

26.1, 26.2 Healthcare staff are responsible for accurate, up-to-date and confidential individual medical files on all prisoners, to which the latter have access upon request or via a self-nominated third party. Medical files should be transferred with the prisoner, while maintaining confidentiality.

New

27.1 Prompt access by healthcare in emergency. (elements of 22.2)/New27.2 Clinical decisions are only taken by responsible healthcare professionals

and may not be overridden by non-medical staff.(elements of 25, 26)/New

28 23.1/Unchanged29.1, 29.2 Decisions on retaining children with parents in prison are based on the

best interests of the child. Where they remain, child-specific healthcare is provided, qualified child care provided when they are not in the care of a parent can be outside the prison. Children imprisoned on the basis of a parent’s detention are never treated as prisoners.


30 The health professional is autonomous rather than a servant of the administration. He/she should identify: ill-treatment prior to admission, signs of psychological or other stress brought on by fact of imprisonment eg suicide/self-harm, and withdrawal symptoms, and provide an individualized response. In case of contagious disease, emphasis is on treatment while infectious rather than just segregation.


31 Healthcare professionals should have daily access to prisoners who complain of physical and mental health issues or injury. Medical exams are fully confidential.


32.1, 32.2 Prison healthcare is governed by professional medical ethics, as in the outside world. The duty of healthcare staff is to protect prisoners’ physical and mental health, based solely on clinical considerations. Prisoners have autonomy and informed consent is required in the

New

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Current Rule No. Topic Previous Rule No. /New or Unchangeddoctor-patient relationship. Medical confidentiality must be maintained, unless maintaining it would ‘result in a real and imminent threat to the patient or to others’. There is an absolute prohibition on engaging, actively or passively, in acts that might constitute torture/IT, including experimentation detrimental to the detainee’s health, such as removal of cells, body tissues or organs. Prisoners can, however, give informed consent to participate in clinical trials accessible in the community, ‘if expected to produce a direct and significant benefit to their health’ and can donate tissues to a relative.

33 25.2/Unchanged except ‘physician’ not ‘medical officer’34 Obligation of health professionals to report torture/IT, identified upon

admission or thereafter, to ‘the competent medical, administrative or judicial authority’, in a way that avoids ‘foreseeable risk of harm’.

New

35.1, 35.2 Physician ‘or competent public health body’ (elements of 26.1, 26.2)/NewRestrictions, discipline and sanctions

Word ‘Restrictions’ added to title, cf. the practices in 37 (which are not necessarily disciplinary or in the nature of sanctions)

36 Removal of notion that discipline should additionally be ‘firm’. Emphasis on prisoners’ safety as well as secure operation of the prison.

(elements of 27)/New

37 Emphasis is placed on the fact that the procedures for any disciplinary action must be set out in law and regulation. A vocabulary of ‘sanctions’ rather than ‘punishment’ is introduced for disciplinary offences. The notion of special isolation/restrictive regimes is teased out ‘any form of involuntary separation from the general prison population, such as solitary confinement, isolation, segregation, special care units or restricted housing, whether as a disciplinary sanction or for the maintenance of order and security’. The related policies and procedures ‘governing the use and review of, admission to and release from any form of involuntary separation’ must be set out in law and regulation. (See Rule 46 for the changed role of health-care staff.)


38.1 There is encouragement to use conflict resolution, mediation etc. and New

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Current Rule No. Topic Previous Rule No. /New or Unchangednot to immediately resort to disciplinary action and punishment

38.2 There is an obligation for prison authorities to take steps to alleviate ‘potential detrimental effects’ of the separation described in 37. There is implied recognition of the lasting effect of the separation on the prisoner, and its implications for the community post-release.

New

39.1 ‘Principles of fairness and due process’ are added to the framework governing the sanctioning of a detainee.


39.2 Sanctions must be proportionate to the offence. A record must be kept of all sanctions imposed.

New

39.3 There should be consideration of mitigating circumstances before sanctioning, including mental illness and developmental disability. There should be no sanctioning of conduct which is a direct result of such conditions.

New

40.1, 40.2 28/Unchanged41.1 Rule 41 as a whole sets out a process for disciplinary hearings that

reflect judicial guarantees/fair trial standards. Allegations must be reported promptly and investigated without undue delay.

New

41.2 Prisoners must be informed of the allegations, in a comprehensible manner, and given time and facilities for their defence.

New

41.3 Prisoners can defend themselves in person and, where relevant (eg where charges and therefore potential consequences are serious), through legal assistance. A free interpreter should be available where needed.


41.4 There should be an opportunity for judicial review of sanctions. New41.5 Where indiscipline is prosecuted as a crime, all due process guarantees

apply, including unimpeded access to a legal adviser.New

42 The living conditions set out elsewhere apply also to separated and punished prisoners, without exception.

New

43.1 There should be no IT as punishment. There is a strong implication that certain practices are not only prohibited but IT, including indefinite and prolonged solitary confinement, placement in a dark or constantly lit cell, corporal punishment, reduction of diet or drinking


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Current Rule No. Topic Previous Rule No. /New or Unchangedwater, collective punishment. Removed is any role for healthcare personnel in punishment (see also the section on Health-care services, Rules 24-35).

43.2 No instruments of restraint whatsoever can be applied as a sanction. (elements of 33)/New43.3 There may be no denial of family contact as a sanction or part of a

sanction. It is only the means of contact that may be restricted, but only temporarily and only with a specific aim related to security/good order.

New

44 Definition of solitary confinement in the context of these rules is ‘confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days.’

New

45.1 Solitary confinement is exceptional, last resort, for as short a time as possible, subject to independent review, must be authorized by a ‘competent authority’. It may not constitute/be part of a sentence.

New

45.2 Solitary confinement may not be imposed where prisoners’ mental or physical disabilities would be exacerbated. There is a reminder of existing standards (which say it and similar measures may not be used on children or pregnant or breastfeeding women or women accompanied in detention by their infants.)

New

46.1 Health-care staff’s exclusive concern is the health of the detainee. They will pay particular attention to the health of those involuntarily separated (defined in 37), including by visiting daily and providing prompt medical assistance and treatment at the prisoner’s or staff’s request.

Transforms the role of health-care staff in relation to prisoners undergoing sanctions previously expressed in old Rule 32/New

46.2 They shall report to the director, without delay, any ill effect of disciplinary sanctions/restrictive measures on physical or mental health of the prisoner and advise if it is necessary to terminate or alter for physical or mental health reasons.

New

46.3 Health-care staff have the authority to review and recommend changes to involuntary separation, to ensure that it does not exacerbate the medical condition or mental/physical disability of the

New

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Current Rule No. Topic Previous Rule No. /New or Unchangedprisoner.

Instruments of restraint47.1 Chains and irons are prohibited, as are other restraints which are

degrading or painful.(elements of 33)/New

47.2 Use of restraints must be authorized by law and only used in the circumstances described in (a) and (b).


47.2(a) 33(a)/Unchanged47.2(b) The physician or other qualified health-care professionals are alerted,

not consulted, ie they are not implicated in the decision-making on imposition of restraints.

(elements of 33(c))/New

48.1 Principles governing the use of restraints New/introduces the requirement of risk assessment48.1(a) Restraints should be used ‘only when no lesser form of control would

be effective to address the risks posed by unrestricted movement’.(elements of 33(c))/New

48.1(b) ‘the least intrusive method that is necessary and reasonably available to control the prisoner’s movement, based on the level and nature of the risks posed’

New

48.1(c) ‘only for the time period required, and they are to be removed as soon as possible after the risks posed by unrestricted movement are no longer present’


48.2 Never used on women during labour, childbirth or immediately after childbirth

New

49 The prison administration should seek and introduce methods and training that would remove the need for instruments of restraint and ‘reduce their intrusiveness’.

New

Searches of prisoners and cellsNew heading

50 The legal and regulatory framework for searches must be in line with international obligations and standards and norms, as well as ensuring security in the prison. Searches must respect dignity and privacy, proportionality, legality and necessity.

New

51 Searches are not for the purposes of harassment, intimidation. To support accountability, records should be kept of searches, particularly

New

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Current Rule No. Topic Previous Rule No. /New or Unchangedstrip and body cavity searches, also cell searches, with the reasons for conducting them, who conducted them and any finds as a result of searches.

52.1 Intrusive searches, including strip and body cavity searches, should be employed only in strict necessity. Should be conducted in private, by trained staff of the same sex as the prisoner. Authorities should develop and use alternatives.

New

52.2 Body cavity searches are to be done ‘only by qualified health-care professionals other than those primarily responsible for the care of the prisoner or, at a minimum, by staff appropriately trained by a medical professional in standards of hygiene, health and safety.’

New

53 Detainees are to have access to, or keep in their possession, without access by the prison administration, documents relating to their own legal proceedings.

New

Information to and complaints by prisoners54 Emphasis is placed on the needs of the prisoner in terms of access to

information, both as a means of asserting/defending his/her rights and adapting to prison life (eg how to access to the prison law and regulations, what are his/her rights, how to get legal assistance etc.)


55.1, 55.2, 55.3 Information should be available in the most common languages, and interpretation/oral transmission be provided if necessary, along with help for those with sensory disabilities. Prominent display of information summaries in common areas.


56.1 Complaints can be made to the director or representative any day of the week, not only weekdays.


56.2 Emphasis is placed on the possibility of free and fully confidential access to inspectors (not just on the absence of staff).


56.3 Explicit mention is made of the possibility to complain about treatment. Emphasis is placed on the importance of the content rather than the mere form of the complaint, and that persons potentially able to review or remedy can be among the relevant recipients.


56.4 The prisoner’s legal adviser can submit complaints on the prisoner’s New

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Current Rule No. Topic Previous Rule No. /New or Unchangedbehalf and, where there is no other possibility of exercising the rights, so can the family, ‘or any other person who has knowledge of the case’

57.1 Elimination of the notion of prisoner’s complaints being potentially frivolous or groundless. These will be replied to ‘without delay’ (rather than ‘without undue delay’). The prisoner is entitled to take the complaint before a judicial or other authority if the complaint is rejected or unduly delayed.


57.2 Safeguards shall be in place against breach of the confidentiality of complaints and against retaliation against the prisoner or other complainant.

New

57.3 Allegations of IT are to be dealt with immediately and to result in prompt and impartial investigation by independent national body (see 71.1, 71.2)

New

Contact with the outside world58.1 Adds telecommunication, electronic and digital means of

communication.(elements of 37)/New

58.2 Conjugal visits, where available, are to be applied without discrimination/available to women prisoners, and accompanied by procedures and premises appropriate to dignity.

New

59 Prisoners should be allocated to prisons close to home New60.1, 60.2 The admission of visitors is contingent on consent to being searched,

but the visitor can withdraw consent at any time. Search and entry procedures for visitors may not be degrading (cf prisoner searches). Body cavity searches should be avoided and these may not be applied to children.

New

61.1 Opportunity, time and facilities should be provided for consultations with legal adviser of own choice, or a legal aid provider, without delay, interception or censorship and in full confidentiality, on any legal matter. These may be within sight, but not hearing of staff.

(This Rule has elements of 93, which previously applied only to untried prisoners)/New

61.2 Prison should facilitate access to a competent interpreter61.3 Access to effective legal aid

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Current Rule No. Topic Previous Rule No. /New or Unchanged62.1, 62.2 38.1, 38.2/Unchanged63 39/Unchanged

Books64 40/Unchanged

Religion65.1, 65.2, 65.3 41/Unchanged66 42/Unchanged

Retention of prisoners’ property67.1, 67.2, 67.3, 67.4 43/Unchanged

Notifications68 Not only the right but ability and means for a prisoner to immediately

inform not only family but designated persons, and not only of imprisonment, transfer, but serious illness or injury. Sharing of prisoners’ personal information is subject to domestic law.


69 Immediate information should be made to next of kin/emergency contact of prisoner’s death. Prison authorities should inform prisoner-designated contacts of illness, injury, medical transfer


70 Prison authorities should inform the prisoner immediately of illness, death of relatives. They are encouraged to authorize attendance at bedside or funeral.


Investigations71.2, 71.2, 71.3 Reports must be made of any custodial death, disappearance, serious

injury, without delay, to an independent body mandated to conduct effective investigation into both circumstances and causes. There should be full cooperation of the prison with that authority and preservation of evidence. The same applies where there are reasonable grounds for suspicion of torture/IT, even where there has been no formal complaint. Immediate steps should be taken to ensure protection from implicated persons, and that they cannot interfere.

New

72 The body of the deceased prisoner should be respected, returned to next of kin at latest upon completion of the investigation. The authorities should facilitate culturally appropriate funerals in the

New

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Current Rule No. Topic Previous Rule No. /New or Unchangedabsence of other options and keep a full record.

Removal of prisoners73.1, 73.2, 73.3 45/Unchanged

Institutional Personnel74.1, 74.2, 74.3 46/Unchanged75.1, 75.2, 75.3 Staff should be helped to be professional, trained and retrained, and

may not be employed if they do not pass entrance exams(elements of 47)/New

76.1, 76.2 A minimum content of training is stipulated: legislation, regulation and policies, international and regional instruments, rights and duties including in relation to dignity/IT, security and safety including dynamic security, use of force and restraint, management of violent offenders, with emphasis on prevention and defusing techniques such as negotiation and mediation, first aid, psychosocial needs of prisoners, social care and assistance, early detection of mental health issues. Special training should be given for special categories of prisoners and specialized functions.

New

77 48/Unchanged78.1, 78.2 49/Unchanged79.1, 79.2, 79.3 50/Unchanged80.1, 80.2 51/Unchanged81.1, 81.2, 81.3 53/Unchanged82.1, 82.2, 82.3 54/Unchanged

Internal and external inspections(elements of 55)

83.1 Clarifies the need for and nature of both internal (prison administration) and external (independent) inspections. The latter ‘may include international or regional bodies’

New

83.2 Expands on what is reviewed: adds conformity with policies and procedures; and on the aims, adding: ‘that the rights of prisoners are protected’


84.1 States the authority of the inspectors, their methodology including New

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Current Rule No. Topic Previous Rule No. /New or Unchangedaccess to information on numbers, locations, treatment, records, conditions; unannounced visits, confidential interviews, make recommendations not only to prison authorities but other competent authorities, etc.

84.2 States the composition of external inspection teams, qualifications, profiles (including health professionals, gender balance)

New

85.1 Must be a written report submitted to competent authority, preferably public

New

85.2 Authorities should indicate, in a timely fashion, whether they will implement the recommendations.

New

II. Rules applicable to special categoriesA. Prisoners under sentence

Guiding principles86 56/Unchanged87 60.2/Unchanged88.1, 88.2 61/Unchanged89.1, 89.2, 89.3, 89.4 89.1, 89.2, 89.3, 89.4/Unchanged90 64/Unchanged

Treatment91 65/Unchanged92.1, 92.2, 92.3 66.1, 66.2, 66.3/Unchanged

Classification and individualization93.1, 93.2 67, 68/Unchanged94 69/Unchanged

Privileges95 70/Unchanged

Work96.1 Opportunity to work (rather than being a requirement). Emphasis is

placed on work as an element of rehabilitation.(elements of 71.2)/New

96.2 71.3/Unchanged97.1 71.1/Unchanged

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Current Rule No. Topic Previous Rule No. /New or Unchanged97.2. 97.3 No slavery. No working for the personal benefit of prison staff. New98.1, 98.2, 98.3 71.4, 71.5, 71.6/Unchanged99.1, 99.2 72.1, 72.2/Unchanged100.1, 100.2 73.1, 73.2/Unchanged101.1, 101.2 74.1, 74.2/Unchanged102.1, 102.2 75.1, 75.2/Unchanged103.1, 103.2, 103.3 76.1, 76.2, 76.3/Unchanged

Education and recreation104.1, 104.2 77/Unchanged105 78/Unchanged

Social relations and aftercare106 79/Unchanged107 80/Unchanged108.1, 108.2, 108.3 81/Unchanged

B. Prisoners with mental disabilities and/or health conditions New terminology in heading and Rules109.1, 109.2, 109.3 Mental health facilities, not prison, should be used for those not

criminally responsible and for others for whom prison exacerbates a mental health disability or condition. Specialist care should be made available for all others.

(Replaces 82)/New

110 83/UnchangedC. Prisoners under arrest or awaiting trial

111.1, 111.2, 111.3 84/Unchanged112.1, 112.2 85/Unchanged113 86/Unchanged114 87/Unchanged115 88/Unchanged116 89/Unchanged117 90/Unchanged118 91/Unchanged119.1, 119.2 Prompt information should be given about the reasons for detention

and any charges.New

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Current Rule No. Topic Previous Rule No. /New or Unchanged120.1, 120.2 Access should be given to defence counsel as under Rule 61. Writing

material should be provided for preparation of defence and instructions to counsel.


D. Civil prisoners121 94/Unchanged

E. Persons arrested or detained without charge122 95/Unchanged

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Documents

prison.gov.bdprison.gov.bd/prisonsite/assets/userfiles/files/ICRC grid … · Web viewThe revised UN Standard Minimum Rules for the Treatment of Prisoners (SMR or Nelson Mandela