HRC53: The purpose of prison should be to rebuild lives, not end them.

The 53rd Session of the Human Rights Council

19 June – 14 July 2023

Item 3 – Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Interactive Dialogue with the Special Rapporteur on extrajudicial, summary, or arbitrary executions

26th July 2023

 

By Maeva Giambrone / GICJ

Executive summary

On the 26th of June 2023, the 12th meeting of the 53rd Regular Session of the Human Rights Council considered the report of Mr. Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/53/29) during an interactive dialogue.

Mr. Morris Tidball-Binz opened the interactive dialogue by presenting the findings of his latest report, which focused on death in detention, and regretted the lack of investigation into most deaths in detention cases. He also called on states to implement the recommendation he made in order to avoid these deaths.

The Special Rapporteur underlined that many deaths in detention are preventable and explained how states can reduce them by following his recommendations.

Various delegations and the Special Rapporteur stressed the importance of respecting the Minnesota Protocol to collect and analyse data and to conduct enquiries into all cases of death in detention.

Civil society groups have denounced various situations around the world leading to numerous deaths in custody, specifically poor conditions of detention and prison overcrowding.

The Special Rapporteur concluded the discussion by stressing the need to collect information on deaths in detention and by recommending the establishment of a new data collection system.

Geneva International Centre for Justice (GICJ) congratulates the Special Rapporteur for his report on the death in detention and its recommendation. We remain extremely concerned about the high rates of death in detention and the lack of investigation to shed light on these deaths. We join the Special Rapporteur in urging states to ratify the OPCAT and to implement the Minnesota Protocol.

Background

An extrajudicial, summary or arbitrary execution means deliberately killing individuals outside of any legal framework, and it constitutes a violation of the most fundamental right that is the right to life.

The legal framework protecting people against these executions is mainly constituted by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights which protect, in addition to the right to life, the right to a fair trial and the non-retroactivity of criminal law.

More specific documents exist for extrajudicial, arbitrary or summary executions, in particular the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, adopted by the Economic and Social Council in its resolution 1989/65 on the 24th of May 1989. The fourth Principle stipulates that “Effective protection through judicial or other means shall be guaranteed to individuals and groups who are in danger of extra-legal, arbitrary or summary executions, including those who receive death threats” [1]. Another important document is the UN Manual on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions which became known as the Minnesota Protocol.

Aside from these documents, the Commission on Human Rights recommended in 1982 the creation of a Special Rapporteur who would report to the Commission on the occurrence and extent of the practice of summary or arbitrary executions, as well as make recommendations. Since then, the mandate has been renewed several times, most recently in June 2017. The mandate was extended in 1992 to add "extrajudicial" and "summary or arbitrary", demonstrating the adoption of a broader approach to executions to include all violations of the right to life. The current Special Rapporteur is Mr. Morris Tidball-Binz, a Chilean doctor, who was appointed on 1 April 2021.

The mandate of the Special Rapporteur covers all countries, irrespective of whether a State has ratified relevant international Conventions. In carrying out his mandate, the Special Rapporteur can:

1)     Transmit urgent appeals to governments and other actors concerning individuals considered to be at risk of extrajudicial, arbitrary or summary executions.

2)     Carry out country visits to monitor executions and make recommendations.

3)     Submit annual reports to the Human Rights Council and the General Assembly on its activities.

Report of the Special Rapporteur

The report of the Special Rapporteur on extrajudicial, summary or arbitrary executions (A/HRC/53/29) focuses on death in detention. Mr. Tidball-Binz recalled that mortality rates in detention are 50% higher than the general mortality rate, notably due to overcrowding and the length of sentences.

He went on to stress that executions carried out in the context of legal proceedings are not always legal. The death penalty can only be imposed for the most serious crimes, and judges must have a margin of discretion in deciding whether to impose it. However, many countries do not comply with these requirements.

He pointed out that states are responsible for the lives of people placed in detention and therefore, in the event of their death, they are presumed to be responsible unless they can prove otherwise. He explained that one consequence of this presumption of responsibility is that a State that has no control over the prisons on its territory should not imprison individuals there.

Following on, the report mentions various means of prevention in order to limit death in detention. Many causes can lead to these deaths, such as “lack of food or nutritious food, lack of potable water, absent or inadequate hygiene and sanitation, vermin infestations, dilapidated buildings, fires, exposure to temperature extremes and lack of access to health care”. Combating these causes would reduce the number of deaths.

The first measure concerns limiting the use of prison sentences. The Special Rapporteur explained that high incarceration rates have been shown to increase delinquency, and while some states have taken steps to reduce incarceration rates, others have increased sentence lengths and imprisonment rates.

In particular, the Special Rapporteur suggested that states limit pre-trial detention and abolish mandatory pre-trial detention, replacing it with release on bail. Likewise, incarceration for minor offences or offences of poverty should be replaced by other sanctions, including transformative and restorative justice approaches. States could take inspiration from rules implemented in Tokyo and Bangkok relating to the development and imposition of non-custodial measures. These rules give examples such as community service, fines, electronic surveillance, or home detention. Finally, to limit detention, Mr. Tidball-Binz evoked the need to take support measures for people leaving prison in order to prevent them from reoffending.

As an example of good practice, he referenced the Netherlands as an example where a reduction in prison population by replacing short-term prison sentences by community service, enabled the prison population to be halved and around twenty prisons to be closed.

The second way to prevent death in detention is to respect and protect the right to health. To do so, the Special Rapporteur highlighted that states must provide prisons that are safe, liveable, clean, that are not overcrowded, have adequate food, and monitor prisoner’s health. He recommends that states abandon inhumane methods of suicide prevention and that prisons employ sufficient and well-trained staff.

The third way to prevent death in detention is through investigation. Indeed, the report considers that all deaths in detention should be notified to an independent organ for investigation. It is clearly stated that the death of an individual under the control of the prison authorities constitutes a death in detention. However, deaths in detention also occur when prisoners die outside prison, for example during transport or when they are in hospital. Equally, any deaths occurring within a month of release should, in the Special Rapporteur's view, be presumed to be related to detention.

Mr. Tidball-Binz regretted that investigations into deaths in custody are still very rare. Many states are unaware of the existence of the Minnesota Protocol or do not take it into account. It encourages states to provide training for all staff in contact with prisoners. He also deplores the fact that very few countries have laws on investigations into deaths in detention.

The last way to prevent these deaths is by collecting information. The Special Rapporteur recalled the 2019 recommendation of the Human Rights Council to create systems to collect and analyse information about death in detention. Yet currently there is no global data. It is also because certain causes of death are difficult to classify, such as suicide which can be classified as accidental death or death due to unknown causes.

The Special Rapporteur concludes his report with a number of recommendations. In particular, he recommends that incarceration be kept to a minimum, that prison sentences not be pronounced where conditions of detention violate human rights, and that independent bodies  be set up to monitor prisons.

Interactive dialogue on the Special Rapporteur Report

Geneva, 26 June 2023. At the 53rd Regular Session of the Human Rights Council, the Special Rapporteur on summary executions held an interactive dialogue regarding death in detention and how states can reduce them.

The Special Rapporteur opened the meeting by raising the need for an increase in resources to carry out his mandate. He explained that he had not been able to respond to all the requests he had received due to a lack of resources. He went on to point out that extrajudicial executions continue to increase around the world, as do cases of selective assassination of dissidents, human rights or environmental activists, journalists or representatives of minorities and other vulnerable groups. Many of these deaths in detention constitute femicide and are rarely investigated. The Special Rapporteur also referred to the use of the death penalty in violation of international law.

He exhorted states to focus their attention on this situation to find a global solution, as these deaths are unacceptable, given that States have an obligation to respect and protect the lives of people deprived of their liberty. In addition, many of these deaths could be avoided if States adopted measures that were not onerous. Mr. Tidball-Binz therefore called on them to implement the recommendations contained in his report to reduce the number of deaths in detention in order to comply with their international commitments.

The Special Rapporteur then evoked his visit to Argentina in November 2022, which was a first since the creation of the mandate in 1982. He noted that the country had built up a solid and practical human rights culture, particularly with the successes achieved in the areas of truth, justice and reparation. His visit enabled him to see these successes, the good practices, but also the problems that persist in Argentina. These included the excessive or unlawful use of force by the police and deaths in custody, which mainly affect the most disadvantaged people, which, in his view, contributes to making this phenomenon invisible while guaranteeing impunity for the perpetrators and the continuation of these practices.

He also regretted that investigations into deaths in custody do not meet international standards, and more specifically the Minnesota Protocol, which sets standards in forensic matters. The Special Rapporteur has therefore made recommendations to improve these investigations and the recording of deaths, and to ensure that the use of force complies with international standards.

Following this, the country concerned, Argentina, thanked the Special Rapporteur for his visit and stated that they would continue the dialogue. The country's representative acknowledged that Argentina still faced challenges, in particular the elimination of institutional violence. This is why a law wasenacted to create the necessary tools to combat this phenomenon. It was also stated that the State was counting on human rights training for the security forces and the various actors in the penitentiary system. Lastly, Argentina stressed the importance of the special procedures for identifying the weaknesses of states and exchanging ideas to improve institutions and legislation and thus prevent and eliminate institutional violence.