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PRISONERS' RIGHTS ISSUES IN THE ASPECT OF HUMAN RIGHTS PROTECTION
UNDER THE CONDITIONS OF THE CORONAVIRUS DISEASE PANDEMIC
(COVID-19)
ANDRII VOITSIKHOVSKYI
voitsihovsky@gmail.com
Professor of the Department of Constitutional and International Law of Faculty 4 of Kharkiv
National University of Internal Affairs (Ukraine), Ph.D. in Law, Associate Professor.
OLEKSANDR BAKUMOV
bakumov.aleks@gmail.com
Associate Professor of the Department of Constitutional and International Law of Faculty 4 of
Kharkiv National University of Internal Affairs (Ukraine), Doctor of Legal Sciences, Associate
Professor.
OLENA USTYMENKO
ustimenko2312@gmail.com
Associate Professor of the Department of Constitutional and International Law of Faculty 4 of
Kharkiv National University of Internal Affairs (Ukraine), Ph.D. in Law, Associate Professor
YEVHENIIA LOHVYNENKO
evgeniyalogvinenko11@gmail.com
Associate Professor of the Department of Constitutional and International Law of Faculty 4 of
Kharkiv National University of Internal Affairs (Ukraine), Ph.D. in Law, Associate Professor
Abstract
Under the conditions of the global pandemic, the problem of international legal regulation of
relations in the field of human rights and freedoms becomes extremely relevant. It must be
recognized that the pandemic and its socio-economic consequences will have a
disproportionate and detrimental effect on the rights of women, children, the elderly,
refugees, migrants, displaced persons and the others in at-risk population group. In this
situation, the problem of respect for rights of persons in detention facilities deserves special
attention. After all, when a person gets into prison, he actually becomes isolated not only
from the society, but also from the opportunity to exercise his constitutional rights and
freedoms.
The purpose of this research is to review the problem of human rights and freedoms restriction
under the conditions of the global pandemic in terms of the execution of the Convention for
the Protection of Human Rights and Fundamental Freedoms of 1950 and the case law of the
European Court of Human Rights, as well as identification and delineation of the problem areas
such as detention facilities containing prisoners who are in fact an at-risk group for the
Coronavirus disease (COVID-19) spread, and in which, despite the relative control of the
whole system, it will be very difficult to stop the spread of the disease in case of its spread in
these institutions.
Proceeding from this goal, we want to draw attention to the observation of international legal
requirements for the legitimacy of human rights and freedoms restrictions in the global
pandemic, as well as the Coronavirus disease spread in detention facilities, disclose the
content of international legal acts containing specific measures and recommendations, which
may be useful in their implementation in the penitentiary institutions practice to prevent the
uncontrolled spread of COVID-19.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 237-251
Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
238
Keywords
Prisoners' rights; pandemic; COVID-19; Council of Europe; Convention for the Protection of
Human Rights and Fundamental Freedoms; European Court of Human Rights
Resumo
Nas condições da pandemia global, o problema da regulação jurídica internacional das
relações no domínio dos direitos humanos e das liberdades torna-se extremamente relevante.
Há que reconhecer que a pandemia e as suas consequências socioeconómicas terão um efeito
desproporcionado e prejudicial sobre os direitos das mulheres, crianças, idosos, refugiados,
migrantes, pessoas deslocadas e os outros pertencentes a um grupo populacional em risco.
Nesta situação, o problema do respeito pelos direitos das pessoas em centros de detenção
merece uma atenção especial. Quando uma pessoa entra na prisão, fica na realidade isolada
não só da sociedade, mas também da oportunidade de exercer os seus direitos e liberdades
constitucionais.
O objectivo desta investigação é rever o problema da restrição dos direitos humanos e das
liberdades nas condições da pandemia global em termos da execução da Convenção para a
Protecção dos Direitos Humanos e Liberdades Fundamentais de 1950 e da jurisprudência do
Tribunal Europeu dos Direitos do Homem, bem como a identificação e delimitação das áreas
problemáticas, tais como as instalações de detenção contendo prisioneiros que são de facto
um grupo de risco para a propagação da doença do Coronavírus (COVID-19), e nas quais,
apesar do controlo relativo de todo o sistema, será muito difícil parar a propagação da doença
no caso da sua propagação nestas instituições.
Partindo deste objectivo, queremos chamar a atenção para a observação dos requisitos legais
internacionais para a legitimidade das restrições de direitos humanos e liberdades na
pandemia global, bem como a propagação da doença do Coronavírus em instalações de
detenção, divulgar o conteúdo de actos legais internacionais contendo medidas e
recomendações específicas, que podem ser úteis na sua implementação na prática das
instituições penitenciárias para impedir a propagação descontrolada da COVID-19.
Palavras-chave;
Direitos dos prisioneiros; pandemia; COVID-19; Conselho da Europa; Convenção para a
Protecção dos Direitos Humanos e Liberdades Fundamentais; Tribunal Europeu dos Direitos
do Homem.
How to cite this article
Voitsikhovskyi, Andrii; Bakumov, Oleksandr; Ustymenko, Olena; Lohvynenko, Yevheniia (2022).
Prisoners' Rights Issues in the Aspect of Human Rights Protection under the Conditions of the
Coronavirus Disease Pandemic (COVID-19). Janus.net, e-journal of international relations, Vol13
N2, November 2022-April 2023. Consulted [online] in date of last visit,
https://doi.org/10.26619/1647-7251.13.2.10
Article received on 13 January 2022, accepted for publication on 21 September 2022
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 237-251
Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
239
PRISONERS' RIGHTS ISSUES IN THE ASPECT OF HUMAN RIGHTS
PROTECTION UNDER THE CONDITIONS OF THE CORONAVIRUS
DISEASE PANDEMIC (COVID-19)
ANDRII VOITSIKHOVSKYI
OLEKSANDR BAKUMOV
OLENA USTYMENKO
YEVHENIIA LOHVYNENKO
Introduction
The rapid spread of the coronaviral disease has led to the fact that on March 11, 2020.
The World Health Organization (WHO) declared a global pandemic. At the request of the
WHO, with concerns about alarming levels of the disease spread and the seriousness of
the situation, many governments around the world have begun urgent and severe
measures to stop the spread of the virus, which considerably restricted human rights and
freedoms.
First of all, such restrictions on human rights and freedoms concern the right to respect
for private life; restrictions on the right to work and get salary (many people are forced
to go on leave of absence, especially parents of young children due to schools and
kindergartens closure); restriction of the right to freedom and personal security - forced
placement of citizens in observations; restrictions of the civil right to freedom of
movement: prohibition for certain categories to move across the state border and check
points, cancellation of transport connections; restriction of the right to exercise the
freedom of peaceful assembly - prohibition to gather more than a certain number of
people; restriction of the right to education - prohibition to attend educational
institutions; restriction of the right to freedom of religion - prohibition of religious events;
restriction of the right to access to medical care - temporary suspension of planned
hospitalization measures and planned operations, except for urgent and acute ones, etc.
The coronavirus pandemic is an unprecedented global emergency. The epidemiologic
situation in many countries of the world has forced governments to take unprecedented
measures to stop the rapid spread of the disease. But even with stern measures, some
facilities are still unnoticed by governments and society, while being one of the most
dangerous sources of the disease. Such institutions, first of all, include detention
facilities.
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 237-251
Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
240
Prisoners are considered to be at-high risk individuals of the incidence of the disease,
because detention facilities are overcrowded accommodation of people who are
recognized as sources of the spread of dangerous infectious diseases such as
tuberculosis, hepatitis and AIDS, and now the coronavirus disease (COVID-19).
In order to create and ensure a favorable environment for persons to be held in detention
facilities, states must fulfill a number of positive obligations, set out in the relevant
international legislation and decisions of the European Court of Human Rights. These
obligations should be effective and timely and should be designed taking into account the
specific dangers of the coronavirus disease (COVID-19).
Restrictions on human rights according to the Convention for the
Protection of Human Rights and Fundamental Freedoms of 1950
Restrictions on human rights and freedoms imposed by the governments of the member
states of the Council of Europe have a direct impact on the exercise of rights and
freedoms according to the Convention for the Protection of Human Rights and
Fundamental Freedoms of 1950.
1
As a result of the COVID-19 pandemic, 10 states out of 47 member states of the Council
of Europe have so far declared their intention to derogate provisions of the Convention
for the Protection of Human Rights and Fundamental Freedoms of 1950: Latvia, Romania,
Moldova, Armenia, Estonia, Georgia, Albania, Northern Macedonia, Serbia and San
Marino (the list is updating
2
). Latvia and Romania were the first countries to derogate
from the obligations according to this Convention on 16 and 18 March 2020, respectively.
In this case we are talking about a retreat ("derogation" - the contractual right of the
state to derogate from certain contractual obligations during armed conflicts and other
social dangers threatening the life of the nation
3
) from certain provisions of the
Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, the
possibility of which is provided by its Article 15.
4
The state notifies the Secretary General
of the Council of Europe that the measures it takes may derogate from its obligations
according to the Convention. Such a derogation is possible only within the limits required
by the seriousness of the situation. Providing that such measures do not contradict with
its other obligations according to the international law.
However, according to the Convention for the Protection of Human Rights and
Fundamental Freedoms of 1950, there are inalienable rights, "derogation" in respect of
which is impossible in any case: the right to life (except in cases of death as a result of
lawful military activities), prohibition on torture and the other kinds of improper
1
Convention for the Protection of Human Rights and Fundamental Freedoms / Council of Europe. European
Convention on Human Rights. URL: https://www.echr.coe.int/Pages/home.aspx?p=basictexts
2
Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5). Notifications under
Article 15 of the Convention in the context of the COVID-19 pandemic.
URL: https://www.coe.int/en/web/conventions/derogations-covid-19
3
Khrystova G. Derogation from state’s human rights obligations in time of public emergency. Visegrad Journal
on Human Rights. 2018. № 4 (2). С. 119-126. URL: https://journal-vjhr.sk/wp-
content/uploads/2020/12/Vyshegrad-4_2018_Tom-2.pdf
4
Convention for the Protection of Human Rights and Fundamental Freedoms / Council of Europe. European
Convention on Human Rights. URL: https://www.echr.coe.int/Pages/home.aspx?p=basictexts
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 237-251
Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
241
treatment, prohibition on slavery and forced labor, and prohibition on cruel and unusual
punishment.
First of all, while introducing a state of emergency as a result of a "public danger
threatening the life of the nation" the state's response has to be based on factual data
and not conditioned by political pressure or the need to do something. There must be a
clear scientific and medical feasibility for emergency measures.
Equally important is the need to use the legislation to achieve the ultimate goal. It is
necessary to prove that the recommendations, soft obligations and rationing
arrangements will not work and the enforcement of a qualitative law is necessary.
Proceeding from the case law of the European Court of Human Rights (ECHR) on the
violation of such rights in the context of Article 15 of the Convention, whenever an
applicant complains that his rights according to the Convention have been violated during
the derogation period, firstly the Court examines whether the measures taken can be
justified according to the main articles of the Convention; and only if they cannot be
justified in this way the Court proceeds to determine whether the derogation from
obligations was lawful (for example, Case of Lawless v. Ireland (Nº 3, 1961).
5
In its advice on the application of Article 15 of the Convention, the ECHR stated that due
attention was paid to factors such as: the nature of the rights affected by the derogation;
circumstances leading to a state of emergency and its duration (Case of Brannigan and
McBride v. the United Kingdom, 1993
6
and Case of A. and Others v. the United Kingdom,
2009
7
); whether ordinary legislation would be sufficient to deal with the threat posed by
public danger; whether the measures are an actual response to a state of emergency;
whether the measures were used for the purpose they were authorized for; whether
safeguards against abusive practice were provided.
Therefore, in the context of the human rights and freedoms restriction in the territory of
the member states of the Council of Europe and the propriety of the interference limits
of such rights, it is necessary to establish whether there was a public danger, whether
measures were taken in response to the threat and whether national legislation was
sufficient.
It is publicly available and acknowledged, primarily due to the WHO decision, that
coronavirus infection is recognized as a pandemic, i.e a threat and a public danger, so it
will be less controversial and problematic to prove the existence of one of the elements
of Article 15 of the Convention for the Protection of Human Rights and Fundamental
Freedoms of 1950.
Taking into account the numerous case law of the ECHR regarding state interference in
human rights, the Court notes that in order for the interference to be justified, three
factors are necessary:
5
Case of Lawless v. Ireland (No. 3), 1961 / European Court of Human Rights.
URL: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57518%22]}
6
Case of Brannigan and McBride v. the United Kingdom, 1993 / European Court of Human Rights.
URL: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57819%22]}
7
Case of A. and Others v. the United Kingdom, 2009 / European Court of Human Rights.
URL: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-91403%22]}
JANUS.NET, e-journal of International Relations
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Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
242
- qualitative law - national legislation must be clear, predictable and properly accessible
(Case of Silver and Others v. the United Kingdom, 1983 [1]
8
). The requirement of
clarity is used to determine the extent of discretionary powers public authorities are
vested with. The national law must reasonably and clearly define the amount and
manner of relevant exercising of power and authority laid upon public authorities in
order to guarantee individuals the minimum level of protection they are given in a
democratic society in accordance with the rule of law (Case of Piechowicz v. Poland,
2012
9
);
- a legitimate justified goal - the establishment of specific, measurable, achievable,
realistic and time-bound goals to change and improve the situation in the future;
- social necessity - the correspondence of the balance of rights of one person with the
balance of the rights of the whole nation to the healthy existence and a safe
environment. The balance of individual and public health convenience is reflected in
the Case of Solomakhin v. Ukraine, 2012
10
, where the Court noted that the violation
of the applicant's physical integrity can be considered justified by public health
considerations and the need to control the spread of the infectious disease in the area.
It should be noted that the ECHR first of all pays attention to the existence of a qualitative
law, as its absence automatically indicates non-compliance of a justified goal and social
necessity. The conclusion that such a measure does not comply with the law is sufficient
for the Court to find that the violation took place. Therefore, there is no need to check
whether the intervention pursued a "legitimate objective" or was "necessary in a
democratic society" (Case of M.M. v. the Netherlands, 2003
11
).
By the way, there is a point of view that the fight against the pandemic does not require
to derogate from the provisions of the Convention for the Protection of Human Rights
and Fundamental Freedoms of 1950. According to this line of thinking, rationing
agreements imposed by states can be justified by reference to the possibility of state
interference in the certain rights exercise, which are enshrined in the text of the
Convention and repeatedly explained in the case law of the ECHR.
12
According to Mykola Gnatovskyy, who was the first Vice-President of the Ukrainian
Association of International Law and President of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment and who now
is the judge of the European Court of Human Rights (ECHR), when in the case of the
8
Case of Silver and Others v. the United Kingdom, 1983 / European Court of Human Rights.
URL: https://hudoc.echr.coe.int/eng#{%22tabview%22:[%22document%22],%22itemid%22:[%22001-
57577%22]}
9
Case of Piechowicz v. Poland, 2012 / European Court of Human Rights.
URL: https://hudoc.echr.coe.int/eng#{%22tabview%22:[%22document%22],%22itemid%22:[%22001-
110499%22]}
10
Case of Solomakhin v. Ukraine, 2012 / European Court of Human Rights.
URL: https://hudoc.echr.coe.int/eng#{%22tabview%22:[%22document%22],%22itemid%22:[%22001-
109565%22]}
11
Case of M.M. v. the Netherlands, 2003 / European Court of Human Rights.
URL: https://hudoc.echr.coe.int/eng#{%22tabview%22:[%22document%22],%22itemid%22:[%22001-
61002%22]}
12
Sean Molloy. Covid-19 and Derogations Before the European Court of Human Rights / Verfassungsblog on
matters constitutional. 10.04.2020. URL: https://verfassungsblog.de/covid-19-and-derogations-before-
the-european-court-of-human-rights/
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e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 237-251
Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
243
COVID-19 pandemic the European Court of Human Rights (if there is such an
opportunity) will estimate the correspondence of agreements of the Convention taken
both by the states that declared a "derogation" and those that remained silent, the Court
is unlikely to appear excessively formalistic. It is more likely that the propriety of taken
measures will be assessed first. It should also be remembered that one of the first duties
of a state to all persons under its jurisdiction is to protect their lives and health, as the
ECHR has repeatedly emphasized in the context of the positive obligations of states
according to Article 2 of the Convention on the Protection of Human Rights and
Fundamental Freedoms in 1950.
Prisoners' rights protection during the pandemic
The crisis caused by the pandemic instantly reveals weaknesses in all spheres of social
life, starting from the organization of public health. And when it comes to people in
detention facilities, by definition the situation will be even more acute. Firstly, when a
person is placed in detention facilities by a state decision, the state has an increased
obligation to care for that person: his life, health and other needs. Everything bad that
happens to a person in detention facilities due to the lack of necessary care on the part
of the state is the responsibility of the latter. In this regard, the UN Human Rights
Committee in its Concluding Observations on Moldova clearly stated that the inability of
the state to take positive steps to prevent the spread of infectious diseases in detention
facilities would signify a violation of Article 6 (the right to life) and Article 9 (the right to
freedom). International Covenant on Civil and Political Rights of 1966.
13
Thus, a state
that has ratified the Covenant is obliged to take the necessary measures to prevent the
spread of COVID-19 in detention facilities, and any refusal would violate its obligations
under the International Covenant on Civil and Political Rights of 1966.
Secondly, detention facilities often have an increased risk of inappropriate treatment of
detainees. It is difficult to generalize, because the nature of the problems, such as, with
the treatment of detainees on suspicion of committing a crime, taken into custody, those
who are on preventive detention and, such as, the treatment of involuntary patients in
psychiatric hospitals or residents of psychoneurological institutions have a lot of
differences. However, all these problems are united by contempt, sometimes systemic,
for the dignity of these people, which creates significant potential for a violation of Article
3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of
1950, which prohibits torture, inhuman or degrading treatment or punishment. Access
to such closed institutions by independent monitoring bodies, both international and
national, is one of the most important means of preventing infringement on the dignity
of persons in detention. This access by human rights bodies and organizations must be
guaranteed even during an epidemic.
At the same time, human rights defenders and other visitors of detention facilities should
take their work responsibly and always be guided by "Do no harm" principle, which is no
13
Consideration of Reports Submitted by States Parties under Article 40 of the Covenant. Concluding
observations of the Human Rights Committee. Republic of Moldova. CCPR/CO/75/MDA. 05.08.2002 / United
Nations.
URL: http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d/PPRiCAqhKb7yhsmq1D+4Wv
g6LhA1iuk+Ho+UUl/18PqzftybICPY5yac8piWATK8r2LWbh/u4BHKEHg9hC51fvbu3iIbqdvejmeXapVvM/0qY7
3OwlMa9OJ3P
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Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
244
less important for them than for doctors. For example, the staff of the monitoring body
(or other authorized persons) visit the nursing home, where there is a large number of
elderly people moreover with various chronic diseases. Even after the pandemic's peak,
visiting such people will require special precaution and, if necessary, the use of all
necessary personal protective equipment. However, for those involved in detention
facilities monitoring, such requirements should be self-evident. After all, even without
an epidemic, they must go to places where at-risk people with dangerous infectious
diseases or weak immune system are placed. Nobody will cancel the requirements of
common sense. However, all detention facilities must remain open for monitoring and
external inspections, even during a pandemic or quarantine.
As previously stated, those serving sentences in detention facilities are among the most
susceptible to the virus. This is because they are in a high-risk environment: as a rule,
such institutions are not adapted to the situation of a large-scale epidemic, and basic
protective measures, such as social distance and hygiene rules, cannot be provided at
the same level as outside these institutions, exposing prisoners to greater health risks.
In addition, in many European countries, the pandemic is spreading in overcrowded
detention facilities and poor conditions in cramped collective prison cells with poor health
care, as well as higher rates of infectious and chronic diseases among prisoners such as
tuberculosis, diabetes and AIDS. Coronavirus infection has already been reported in
detention facilities across Europe, and in some cases it was followed by death. Covid-19
outbreaks and deaths from the virus have been reported in detention facilities in many
countries, including Belgium, Spain, the United Kingdom, as well as China, Iran, Kenya,
India, and others.
14
Tensions in detention facilities have risen since the pandemic crisis
outbreak, leading to protests. In some countries, there are even violent protests of
prisoners (USA
15
, Brazil, Colombia
16
,
17
; Italy
18
; Iran, Egypt
19
; China, South Korea
20
;
Peru
21
; Ukraine
22
etc.). In response, penal administration is taking steps to restrict visits
and other forms of leisure in detention facilities.
Chronic overcrowding and underfunding have left prisons around the world vulnerable to
being ravaged by coronavirus, criminal justice experts have warned. Prisons in more than
14
Pandemic potentially a 'death sentence' for many prison inmates, experts warn. / The Guardian.
23.04.2020. URL: https://www.theguardian.com/global-development/2020/apr/23/pandemic-potentially-
a-death-sentence-for-many-prison-inmates-experts-warn
15
Prison uprising put down as US inmates demand protection from coronavirus / The Guardian. 10.04.2020.
URL: https://www.theguardian.com/us-news/2020/apr/10/us-prisons-coronavirus-uprising-riot
16
As Coronavirus Strikes Prisons, Hundreds of Thousands Are Released / The New York Times. 26.04.2020.
URL: https://www.nytimes.com/2020/04/26/world/americas/coronavirus-brazil-prisons.html
17
Prison riots break out around the world as coronavirus spreads / The Telegraph. 01.04.2020.
URL: https://www.telegraph.co.uk/news/2020/04/01/prison-riots-break-around-world-coronavirus-
spreads/
18
Death toll rises in Italian prisons as inmates riot over COVID-19 rules / Euronews. 10.03.2020.
URL: https://www.euronews.com/2020/03/09/six-dead-as-coronavirus-restrictions-trigger-italy-prison-
riots
19
Amnesty: Iran Joins Syria, Egypt in Seeing Prison Unrest Linked to Coronavirus / VOANEWS. 10.04.2020.
URL: https://www.voanews.com/science-health/coronavirus-outbreak/amnesty-iran-joins-syria-egypt-
seeing-prison-unrest-linked
20
How the coronavirus is igniting riots, releases and crackdowns in world’s prisons / The Washington Post.
26.03.2020. URL: https://www.washingtonpost.com/world/how-coronavirus-is-igniting-riots-releases-and-
crackdowns-in-the-worlds-prisons/2020/03/25/6ca94494-6aba-11ea-b199-3a9799c54512_story.html
21
Officials: 9 inmates dead in Peru coronavirus prison riot / TRIBLIVE. 16.05.2020.
URL: https://triblive.com/news/world/officials-9-inmates-dead-in-peru-coronavirus-prison-riot/
22
Koronavirus sprychynyv bunt u SIZO Chernivtsiv, ye poraneni / BBC NEWS. Ukrayina.26.04.2020.
URL: https://www.bbc.com/ukrainian/news-52431273
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e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 237-251
Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
245
100 countries operate above their occupancy rates, with 20 countries at double their
capacity limit.
The challenges of a record global prison population of 11 million have been brought to
light in a report published by Penal Reform International (PRI) which found that 102
countries have prison occupancy levels of more than 110%.
Social distancing and personal infection control are almost impossible in overcrowded
settings where poor ventilation and sanitation are likely increase the speed at which the
virus spreads.
Florian Irminger, executive director of PRI, said: «Prison systems globally were at crisis
point before the coronavirus pandemic. Now prisons across the world are ticking time
bombs set to be devastated by this virus because of overcrowding, lack of basic
healthcare, limited access to clean water… and inhumane living conditions».
23
To prevent a large-scale coronavirus outbreak in detention facilities, some states have
initiated the release of certain categories of prisoners: Turkey's parliament adopted a
law allowing the temporary release of 45 thousand prisoners; Indonesia - about 30
thousand, Brazil - about 30 thousand, the United States - several thousand
24
; Iran - 70
thousand
25
; Great Britain - about 4 thousand
26
; Bahrain - 1.5 thousand
27
, Egypt - about
10 dissidents
28
, in Ukraine it is planned to amnesty about 1 thousand prisoners in
2020
29
).
Many other states have begun the process of adapting their criminal justice systems to
reduce the number of prisoners, taking various measures, including temporary or early
release and amnesty; keeping under arrest at home and commutation of sentences;
suspension of criminal investigations and execution of sentences. Thus, the Italian
government adopted a decree that, in part, allows for early supervised release of
prisoners with less than 18 months left to serve. Germany, which released 40 inmates in
Hamburg who were imprisoned because they could not pay a fine for their crime, has
delayed incarceration for those facing sentences of less than three years.
30
Israel is
23
Pandemic potentially a 'death sentence' for many prison inmates, experts warn. / The Guardian.
23.04.2020. URL: https://www.theguardian.com/global-development/2020/apr/23/pandemic-potentially-
a-death-sentence-for-many-prison-inmates-experts-warn
24
As Coronavirus Strikes Prisons, Hundreds of Thousands Are Released / The New York Times. 26.04.2020.
URL: https://www.nytimes.com/2020/04/26/world/americas/coronavirus-brazil-prisons.html
25
Coronavirus: Europeans warned to expect months of disruption / The Guardian. 09.03.2020.
URL: https://www.theguardian.com/world/2020/mar/09/coronavirus-six-die-in-prison-protest-linked-to-
italian-clampdown
26
Richard Garside: 'The UK is lagging behind Europe on coronavirus in prisons' / The Guardian. 21.04.2020.
URL: https://www.theguardian.com/society/2020/apr/21/richard-garside-uk-lagging-behind-europe-
coronavirus-prisons
27
How the coronavirus is igniting riots, releases and crackdowns in world’s prisons / The Washington Post.
26.03.2020. URL: https://www.washingtonpost.com/world/how-coronavirus-is-igniting-riots-releases-and-
crackdowns-in-the-worlds-prisons/2020/03/25/6ca94494-6aba-11ea-b199-3a9799c54512_story.html
28
Amnesty: Iran Joins Syria, Egypt in Seeing Prison Unrest Linked to Coronavirus / VOA VOANEWS.
10.04.2020. URL: https://www.voanews.com/science-health/coronavirus-outbreak/amnesty-iran-joins-
syria-egypt-seeing-prison-unrest-linked
29
Romanov M. Zakhody proty poshyrennya epidemiyi COVID-19 v penitentsiarnykh ustanovakh Ukrayiny /
Prava Lyudyny v Ukrayini. Informatsiynyy portal Kharkivsʹkoyi pravozakhysnoyi hrupy. 05.04.2020.
URL: http://khpg.org/index.php?id=1586113143
30
How the coronavirus is igniting riots, releases and crackdowns in world’s prisons / The Washington Post.
26.03.2020. URL: https://www.washingtonpost.com/world/how-coronavirus-is-igniting-riots-releases-and-
crackdowns-in-the-worlds-prisons/2020/03/25/6ca94494-6aba-11ea-b199-3a9799c54512_story.html
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Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
246
considering transferring 500 prisoners to house arrest, but this rule will not reach
Palestinian inmates.
31
International documents of Council of Europe on protection the
prisoners' health
For many years public health authorities at both national and international levels paid
little or no attention to health care in prisons. World Health Organization (WHO) in the
first four decades of its existence carried out no substantive work and published no
documents about health services in prisons or the health of prisoners. Prison health was
little studied, did not feature in academic programs and was rarely the subject of
published articles in medical journals. Prisons were a “world apart” and the few doctors
working in prisons were employed and supervised by the prison administration and had
no contact with local or national health bodies, medical schools or other professional
bodies.
32
The basic principles of the health care system organization in detention facilities were
developed and integrated in the Recommendation of the Committee of Ministers of the
Council of Europe Rec (98) 7 on the ethical and organizational aspects of health care in
prisons almost two decades ago.
33
Council of Europe member states are encouraged to
take these principles into account when reviewing their own legislation and case law in
the field of health care in detention facilities. The Recommendation emphasizes that
medical practice in public health service centers out of and in detention facilities should
be guided by the same ethical principles, and the respect for fundamental rights of
prisoners by providing prisoners with preventive treatment and health care equivalent to
those which are provided in the community. Recommendation of the Committee of
Ministers Rec (98) 7 remains a fundamental document in this field.
The prisoners' right to receive medical treatment is one of the basic principles of
Recommendation of the Committee of Ministers of the Council of Europe Rec (2006) 2 on
European Penitentiary Rules, according to which “persons deprived of their freedom
retain all rights which they have not been legally deprived of, according to which they
are sentenced to imprisonment or taken into custody."
34
As soon as the scale of the pandemic in Europe became more or less clear, the European
Committee for the Prevention of Torture, Inhuman or Degrading Treatment or
Punishment (CPT) 20.03.2020 approved a document entitled "Statement of principles
relating to the treatment of persons deprived of their liberty in the context of the
31
How the coronavirus is igniting riots, releases and crackdowns in world’s prisons / The Washington Post.
26.03.2020. URL: https://www.washingtonpost.com/world/how-coronavirus-is-igniting-riots-releases-and-
crackdowns-in-the-worlds-prisons/2020/03/25/6ca94494-6aba-11ea-b199-3a9799c54512_story.html
32
Jörg Pont, Timothy Wilfrid. Harding. Organisation and management of health care in prison. Guidelines /
COUCIL OF EUROPE. URL: https://rm.coe.int/manual-organisation-and-management-of-health-care-in-
prison-coe-2019/16809e4d87
33
Recommendation No. R (98) 71 of the Committee of Ministers to Member States Concerning the Ethical and
Organizational Aspects of Health Care in Prison: adopted by the Committee of Ministers on 8 April 1998 /
Council of Europe. URL: https://rm.coe.int/09000016804fb13c
34
Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison
Rules: Adopted by the Committee of Ministers on 11 January 2006 / Council of Europe.
URL: https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016805d8d25
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Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
247
coronavirus disease (COVID-19)"
35
. This document, which is the most concise and
accessible list of the ten basic principles, has been translated into many languages of the
member states of the Council of Europe. These recommendations received positive
feedback from both states and relevant international organizations. Interestingly, the
detailed recommendations of the World Health Organization (WHO) on the specifics of
struggle against the pandemic in detention facilities
36
, developed on 13.05.2020 р., fully
comply with the viewpoints expressed by the European Committee for the Prevention of
Torture.
Statement of Principles of the European Committee for the Prevention of Torture
emphasizes the need to take all possible measures to protect the health and safety of all
persons in detention facilities and of the staff working there, as these are directly
interrelated matters. As the struggle against the pandemic is a global matter, it should
be guided primarily by WHO recommendations and national reports based on them.
Mobilization, training and creating conditions for staff to work in such conditions is also
a necessary element.
Inmates should have access to both coronavirus testing and, if necessary, intensive care
units. Increased attention should be paid to the special needs of such persons, in
particular vulnerable groups and at-risk groups, namely the elderly, persons with pre-
existing conditions, pregnant women and juvenile prisoners. The Committee's principles
include maintaining the necessary personal hygiene level (including the availability of
soap and hot water), psychological support and human contact for people in medical
isolation, and compensating for the lack of access to relatives by telephone and voice
connection via the Internet, necessity to be outdoors for at least an hour a day.
According to the Principles, alternatives to imprisonment used by the member states of
the Council of Europe is a priority in situations of detention facilities overcrowding, and
even more so in states of emergency. The pandemic has created a situation where states
must seriously consider urgent measures to "unload" detention facilities. Reducing the
number of prisoners throughout Europe is a prerequisite for ensuring effective sanitation
and easing growing pressure on prison staff and the penitentiary system as a whole. It
is clear that the immediate and unconditional release of human rights defenders,
activists, journalists and all those deprived of their liberty for violating human rights
standards in some member states of the Council of Europe must also be a priority in this
context.
It is clear that close contact between prisoners in overcrowded cells, barracks or wards
can quickly turn these places into breeding grounds for infection, dooming to serious
illness or even the death of a large number of inmates. In addition, the infection can
spread to the whole society, for which prisons, so to say, will play the role of "amplifiers"
of the epidemic. Therefore, the European Committee for the Prevention of Torture calls
on states to use the alternatives of detention more often, to reduce imprisonment length,
parole, reassess the need to continue involuntary hospitalization of psychiatric patients,
35
Statement of principles relating to the treatment of persons deprived of their liberty in the context of the
coronavirus disease (COVID-19) pandemic / Council of Europe. European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment. URL: https://rm.coe.int/16809cfa4b
36
UNODC, WHO, UNAIDS and OHCHR joint statement on COVID-19 in prisons and other closed settings /
World Health Organization. URL: https://www.who.int/news-room/detail/13-05-2020-unodc-who-unaids-
and-ohchr-joint-statement-on-covid-19-in-prisons-and-other-closed-settings
JANUS.NET, e-journal of International Relations
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Prisioner’s rights issues in the aspect of human rights protection under the conditions of the coronavirus
disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
248
and release or provide community care to persons in social protection institutions, as well
as to the refusal, as far as possible, of migrants administrative detention.
Particular attention should be paid to those prisoners who have health problems; the
elderly who do not pose a threat to society; and those accused or convicted of minor or
nonviolent crimes. At the same time, those released persons in need of support should
be provided with adequate access to emergency care, housing and basic services,
including health care.
Governments must ensure that the human rights of all those who remain in detention
facilities are respected during the COVID-19 pandemic. Any restrictive measures taken
against persons in detention must be necessary, proportionate, non-discriminatory,
limited in time and under control. The absolute prohibition on torture and ill-treatment
should never be violated by measures taken in detention facilities, including in the case
of health protection isolation. All measures should be taken to protect the right to life
and health of prisoners and prison staff in accordance with the WHO Regional Office for
Europe recommendations. As emphasized in the Interim Guidance on COVID-19, inmates
should continue to have access to information, legal assistance and independent
grievance mechanisms. Mechanisms for monitoring detention facilities should be able
to continue to monitor the situation, taking precautions not to put people at risk (the "Do
no harm" principle).
37
In order to effectively solve the problems associated with the spread of the coronavirus
in detention facilities, the Council of Europe member states must urgently adopt and start
exercising a humane and comprehensive crisis plan based on sufficient human and
financial resources, taking into account the needs of those who leaves detention facilities,
and those who remains, as well as penitentiary institutions employees. This should be
done according to relevant human rights parties concerned, in particular national
preventive mechanisms and other independent monitoring bodies, national human rights
bodies and human rights organizations.
38
Conclusion
The Council of Europe member states, like most countries in the world, have introduced
safeguard measures to stop or at least significantly slow down the spread of the
coronavirus pandemic (COVID-19). They have developed a number of recommendations
and measures that are needed to be introduced and exercised within penitentiary
institutions, and which should help to take control of the situation and manage it.
From the human rights perspective, first of all it must be remembered that the state has
positive obligations to protect the lives and health of all persons under its jurisdiction,
including those in detention facilities. Therefore, the failure of the state to take the
necessary measures may amount to a serious violation of fundamental human rights and
37
IASC Interim Guidance on COVID-19: Focus on Persons Deprived of Their Liberty (developed by OHCHR
and WHO). URL: https://interagencystandingcommittee.org/other/iasc-interim-guidance-covid-19-focus-
persons-deprived-their-liberty-developed-ohchr-and-who
38
COVID-19 pandemic: urgent steps are needed to protect the rights of prisoners in Europe / Council of
Europe. Commissioner for Human Rights. URL: https://www.coe.int/en/web/commissioner/view/-
/asset_publisher/ugj3i6qSEkhZ/content/covid-19-pandemic-urgent-steps-are-needed-to-protect-the-
rights-of-prisoners-in-europe?_101_INSTANCE_ugj3i6qSEkhZ_languageId=en_GB
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disease pandemic (Covid-19)
Andrii Voitsikhovskyi, Oleksandr Bakumov, Olena Ustymenko, Yevheniia Lohvynenko
249
freedoms, starting with the right to life. At the same time, any human rights and
freedoms restriction by the state must be based on the law, be necessary, proportionate,
based on respect for human dignity and limited in time. Even during a state of emergency
or quarantine, the state must guarantee the human rights and freedoms enshrined in its
own Constitution and in its international obligations.
The protection of human rights and freedoms in a pandemic is an activity in which both
government agencies and non-governmental human rights organizations must
participate. Public authorities must act straightforwardly and clearly, explaining the
pandemic policies, and explain why these policies are needed, especially those relating
to human rights and freedoms restrictions. Human rights organizations must continue to
monitor, document and report on the respect for human rights and freedoms in detention
facilities, and advocate for changes in our society aimed at better rights protection of this
category of people.
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