30/19 Human rights implications of overincarceration and overcrowding - Report of the United Nations High Commissioner for Human Rights

Human Rights Council Thirtieth session

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Human rights implications of overincarceration and overcrowding

Report of the United Nations High Commissioner for Human Rights

Summary

The present report is submitted pursuant to Human Rights Council resolution 24/12.

It contains an analysis of the human rights implications of overincarceration and

overcrowding, drawing on the experience of United Nations and regional human rights

mechanisms and in the light of the views provided by States, including on their practice

regarding alternatives to detention, and other relevant stakeholders.

United Nations A/HRC/30/19

General Assembly Distr.: General 10 August 2015

Original: English

Contents

Page

I. Introduction ...................................................................................................................................... 3

II. The impact of overincarceration and overcrowding on human rights .............................................. 4

A. Right to liberty and security ..................................................................................................... 5

B. Freedom from torture and other inhuman or degrading treatment or punishment ................... 7

C. Right to health.......................................................................................................................... 7

D. Right to food, water and sanitation .......................................................................................... 8

E. Right to education and rehabilitation ....................................................................................... 9

F. Freedom of religion or belief ................................................................................................... 10

G. Right to privacy, family life and rights of family members ..................................................... 10

H. Right to equality and non-discrimination................................................................................. 11

III. The main causes of overincarceration and overcrowding ................................................................ 12

A. Deficiencies within the criminal justice system ....................................................................... 12

B. Excessive recourse to pretrial detention................................................................................... 13

C. Absence and/or improper administration of alternatives to detention ..................................... 14

D. Sentencing policies .................................................................................................................. 14

E. Lack of oversight of places of detention .................................................................................. 15

IV. Addressing overincarceration and overcrowding and their human rights implications .................... 16

A. Need for a proactive and holistic approach .............................................................................. 16

B. Right to challenge detention, assistance by legal counsel and access to legal aid ................... 16

C. Appropriate use of places of detention .................................................................................... 17

D. Pretrial detention as a last resort .............................................................................................. 18

E. Alternatives to custodial measures........................................................................................... 18

F. Proportionate sentencing.......................................................................................................... 19

G. Rehabilitation and reduction of reoffending rates .................................................................... 20

H. Oversight and complaints mechanisms .................................................................................... 20

V. Conclusions ...................................................................................................................................... 21

I. Introduction

1. The first substantive right provided by the Universal Declaration of Human Rights,

in its article 3, is the right to life, liberty and security of person. As stressed by the Human

Rights Committee in paragraph 2 of its general comment No. 35, on article 9 of the

International Covenant on Civil and Political Rights, the right to liberty and security of

person is precious for its own sake, and also because the deprivation of liberty and security

of person have historically been principal means for impairing the enjoyment of other

rights.1

2. While the right to liberty of person is not an absolute right, any deprivation of liberty

must not be arbitrary and must be carried out with respect for the rule of law.2 As affirmed

by the Human Rights Council in its resolution 24/12, detainees retain all of their human

rights and fundamental freedoms, except for those lawful limitations that are demonstrably

necessitated by the fact of incarceration.

3. According to recent statistics, more than 10.2 million people around the world are

deprived of their liberty,3 about 3 million of whom are awaiting trial.4 Data further suggests

that the number of prisoners exceeds official prison capacity in at least 114 countries, and

that prisons in 92 of these countries hold between 100 and 200 per cent of their capacity,

while 22 hold over double, even triple or nearly quadruple their capacity.5 The levels of

overcrowding in places of deprivation of liberty around the world have been described as

endemic,6 alarming,7 extreme,8 chronic9 and outrageous,10 and are said to be an indicator of,

and contributor to, the global prison crisis.11

4. The phenomena of overcrowding and overincarceration are inherently intertwined.

The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment stated that “[t]he negative impact of the overuse of incarceration on human

rights is manifold. The overuse of imprisonment constitutes one of the major underlying

causes of overcrowding, which results in conditions that amount to ill-treatment or even

torture”.12 Furthermore, numerous United Nations bodies and mechanisms, including the

Security Council,13 the Human Rights Committee,14 the Committee against Torture,15 the

Subcommittee on Prevention of Torture,16 the Working Group on Arbitrary Detention17 and

1 See CCPR/C/GC/35, para. 2.

2 See ibid., para 10.

3 See Roy Walmsley, World Prison Population List, 10th edition (London, International Centre for

Prison Studies, 2013).

4 See Roy Walmsley, World Pre-trial/Remand Imprisonment List, 2nd edition (London, International

Centre for Prison Studies, 2014).

5 See International Centre for Prison Studies, Highest to Lowest-Occupancy level (based on official

capacity) (London, 2014).

6 See CAT/OP/MLI/1, para. 49.

7 See A/HRC/22/53/Add.2, para. 81; CAT/OP/BRA/1, para. 96.

8 See CAT/OP/BEN/1, para. 147.

9 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16033&LangID=E.

10 See Council of Europe document CPT/Inf (2015) 6, para. 57.

11 See A/65/273, para. 1.

12 See A/68/295, para. 86.

13 See, for example, Security Council resolution 2180 (2014), para. 16.

14 See, for example, CAT/C/RWA/CO/1, para. 19, and CAT/C/TGO/CO/2, para. 13.

15 See, for example, CAT/OP/HND/1, para. 198.

16 See CAT/OP/MLI/1, para. 49; CAT/OP/MEX/1, para. 177; and CAT/OP/BEN/1, para. 147.

17 See, for example, A/HRC/10/21, para. 42, and A/HRC/27/48, paras. 72-74.

regional human rights bodies18 have all expressed serious concerns about overcrowding in

places of deprivation of liberty and its negative impact on the human rights of detainees.

5. Overcrowding is not only a problem in prisons but also in other places in which

individuals are deprived of their liberty. Article 4 of the Optional Protocol to the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment defines the term “deprivation of liberty” as encompassing any place under

States’ jurisdiction and control where persons are or may be deprived of their liberty, either

by virtue of an order given by a public authority, or at its instigation, or with its consent or

acquiescence. This definition corresponds to the long-standing practice of international and

regional human rights mechanisms, which have interpreted the term “deprivation of liberty”

to include settings beyond the criminal justice sector.19 The problem of overcrowding also

extends to such settings, including psychiatric hospitals,20 various centres for holding

irregular migrants and asylum seekers,21 including offshore centres for processing asylum

claims,22 and temporary airport holding facilities.23

6. The Human Rights Council, in its resolution 24/12, encouraged States to address

overcrowding in detention facilities by taking effective measures. In the same resolution, it

requested the United Nations High Commissioner for Human Rights to submit an analytical

report on the human rights implications of overincarceration and overcrowding, drawing on

the experience of United Nations and regional human rights mechanisms, seeking the views

of States, including on their practice regarding alternatives to detention, and other relevant

stakeholders. In response to a note verbale sent by the Office of the United Nations High

Commissioner for Human Rights, 23 States and 22 other stakeholders submitted their

views, which are available online.24

7. The present report contains an analysis of the human rights implications of

overincarceration and overcrowding, including the impact of overincarceration and

overcrowding on human rights, the main causes of overincarceration and overcrowding,

recommendations on ways to address these issues and conclusions.

II. The impact of overincarceration and overcrowding on human rights

8. The main element that defines deprivation of liberty is the inability of those who are

in detention to protect themselves, as their daily life is largely dependent on the decisions

taken by personnel in detention facilities.25 Therefore, when resorting to deprivation of

liberty, a State undertakes a duty of care26 and special responsibility27 towards those held in

18 See www.achpr.org/files/sessions/52nd/inter-act-reps/185/activty_report_prisons_eng.pdf, p. 8.

19 CCPR/C/GC/35, para. 5.

20 E/C.12/1/Add.80, para. 31; A/HRC/25/60/Add.1, para. 69; CAT/C/GHA/CO/1, para. 17;

CAT/C/RUS/CO/4, para. 18; CAT/OP/MEX/1, para. 203; www.achpr.org/files/activity-

reports/36/achpr54eos15_actrep36_2014_eng.pdf, para. VII b(xvi).

21 E/C.12/DEU/CO/5, para. 13; A/HRC/13/30, para. 65; CAT/C/GRC/CO/5-6, para. 20;

CAT/C/NOR/CO/6-7, para. 17; CCPR/C/FIN/CO/6, para. 10;

www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, p. 65.

22 CAT/C/AUS/CO/4-5, para. 17.

23 See Council of Europe document CPT/Inf (2014) 26, para. 73.

24 www.ohchr.org/EN/Issues/RuleOfLaw/Pages/Overincarceration.aspx.

25 A/HRC/10/21, para. 46.

26 See Council of Europe document CPT/Inf (2015) 12, para. 54.

detention. Consequently, failure to fulfil this duty may entail State responsibility,28

including international responsibility.29 Except for those lawful limitations that are

demonstrably necessitated by the fact of incarceration, State authorities should ensure that

persons deprived of their liberty are able to enjoy all human rights.

A. Right to liberty and security

9. As stressed by the Human Rights Committee, the right to liberty and security of

person applies to everyone, including those convicted of crime.30 While States enjoy a wide

margin of discretion in their choice of penal policy, the right to liberty of person articulated

in article 9 of the International Covenant on Civil and Political Rights requires that, as a

basic principle, States resort to the deprivation of liberty only insofar as it is necessary to

meet a pressing societal need and in a manner proportionate to that need.31 Moreover, any

deprivation of liberty must not be arbitrary and must be carried out with respect for the rule

of law.32

10. One of the fundamental safeguards against arbitrary deprivation of liberty is the

right to bring proceedings before a court to challenge the lawfulness of detention, which is

a self-standing33 and non-derogable right.34 In order to render this right effective, such

principles as impartiality of the court reviewing the detention, assistance by a legal counsel,

access to legal aid and authorities bearing the burden of proof must be observed.35 Yet,

numerous human rights bodies have reported serious infringements upon the right to liberty

as individuals are detained without any justification,36 those arrested are not promptly

brought before a judge,37 and a judicial decision regarding continued detention is not

rendered swiftly.38 Moreover, the ability of detainees to challenge their continued detention

is frequently hindered owing to a lack of access to legal representation and legal aid and

even the unavailability of judges.39

11. The Working Group on Arbitrary Detention stated that the principle that deprivation

of liberty shall be imposed proportionately to meet a pressing public need is most relevant

to detention pending trial.40 This implies that pretrial detention should be a measure of last

27 See A/HRC/27/55, para. 51; Caesar v. Trinidad and Tobago, Inter-American Court of Human Rights

Judgement (2005), para. 97; and communication Nos. 105/93–128/94–130/94–152/96, Media Rights Agenda & Constitutional Rights Project v. Nigeria, African Commission on Human and Peoples’ Rights (1998), para. 91.

28 See CCPR/C/GC/35, para. 8.

29 See CAT/OP/MEX/1, para. 177.

30 See CCPR/C/GC/35, para. 3.

31 See E/CN.4/2006/7, para. 63.

32 See CCPR/C/GC/35, para. 10.

33 See A/HRC/30/37, para. 2.

34 See A/HRC/30/37, paras. 22-25. See also CCPR/C/21/Rev.1/Add.11, paras. 11 and 16, and

CCPR/C/GC/35, paras. 6-67.

35 See A/HRC/30/37, guidelines 4, 8 and 14.

36 See CAT/C/TGO/CO/2, para. 13.

37 See www.achpr.org/files/sessions/37th/mission-

reports/ethiopia/misrep_specmec_priso_ethopia_2004_eng.pdf, pp. 24 and 25.

38 See A/HRC/19/57, para. 53, and www.achpr.org/files/sessions/52nd/inter-act-

reps/185/activty_report_prisons_eng.pdf, pp. 21 and 22.

39 See CCPR/C/TUR/CO/1, para. 17; A/HRC/19/57, para. 63; A/HRC/10/21, para. 45; CAT/C/54/2

para. 91; and www.achpr.org/files/sessions/52nd/inter-act-reps/185/activty_report_prisons_eng.pdf,

p. 10.

40 See E/CN.4/2006/7, para. 64.

resort. However, international41 and regional42 bodies have expressed their concern over the

increasing use of pretrial detention and its excessive length, noting its significant

contribution to overcrowding,43 leading to a situation where, in some prisons, pretrial

detainees constitute the majority of the population.44

12. It has also been reported that, in some States, overcrowding makes it difficult to

monitor the implementation of each sentence. This infringes upon the right to personal

liberty of those who have already served their sentences and are not promptly released.45

13. Concerns have also been expressed over practices of preventive custody46 and post-

conviction preventive detention47 employed by some States, which both infringe upon the

right to liberty and contribute to the problem of overincarceration and overcrowding.

14. Authorities in charge of places of detention bear the duty of care towards

detainees,48 a duty often neglected as — due to overcrowding — prison resources are

overstretched and staffing levels are inadequate for the numbers of detainees. This leads to

serious breaches of the right to security of detainees and instances where authorities fail to

protect detainees from inter-prisoner violence.49 Due to overcrowding, tensions may also

arise between the staff and detainees50 with a potential serious impact on discipline,51

leading to rule by the most powerful detainees,52 riots, disturbances and hunger strikes in

protest to the conditions of detention.53 Furthermore, overcrowding in detention facilities

may be so extreme that the authorities are unable to ensure the protection of detainees in

case of such emergencies as floods and fire,54 which in turn may infringe upon their right to

life.55

41 See A/HRC/19/57, para. 48; CAT/C/54/2, para. 76; and CCPR/C/TUR/CO/1, para. 17.

42 See www.achpr.org/files/sessions/12th-eo/mission-reports/promotion_mission-

2012/mission_report_mauritania_cpta_eng.pdf, para. 38. See also Council of Europe document

CPT/Inf (2014) 31, para. 56.

43 See CAT/C/TGO/CO/2, para. 12, and CAT/OP/MLI/1, para. 29.

44 See CAT/C/46/2, para. 52, and CAT/C/GTM/CO/5-6, para. 17.

45 See CAT/C/RWA/CO/1, para. 19, and CAT/OP/PRY/1, para. 46.

46 See A/HRC/27/48, paras. 78 and 79.

47 See A/HRC/27/48, para. 75; A/HRC/4/25/Add.3, para. 7(f); and CAT/OP/BEN/1, para. 151.

48 See Council of Europe document CPT/Inf (2015) 12, para. 54.

49 See www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, p. 53, and Neptune v. Haiti, Inter-American

Court of Human Rights Judgement (2008), para. 137; CPT/Inf (2015) 12, para. 106. See also Council

of Europe document CPT/Inf (2014) 26, para. 110; CAT/C/BGR/CO/4-5, para. 23;

CAT/C/GTM/CO/5-6, para. 18, CAT/C/MEX/CO.5-6, para. 19; CCPR/C/BOL/CO/3, para. 20; and

CAT/OP/MEX/1, para. 178.

50 See Council of Europe document CPT/Inf (2014) 31, para. 56; A/HRC/25/60/Add.1, para. 19; and

CAT/OP/BEN/1, para. 210.

51 See CAT/OP/MLI/1, para. 49.

52 See CAT/OP/MEX/1, para. 166; CAT/C/BGR/CO/4-5, para. 23; and Council of Europe document

CPT/Inf (2015) 12, para. 54.

53 See CAT/C/BOL/CO/2, para. 18, and CAT/C/MAR/CO/4, para. 19.

54 See Pacheco Teruel et al. v. Honduras, Inter-American Court of Human Rights Judgement (2012),

para. 96. See also Council of Europe document CPT/Inf (2014) 26, para. 102, and CAT/OP/MEX/1,

para. 176.

55 See Pacheco Teruel et al. v. Honduras, Inter-American Court of Human Rights Judgement (2012),

para. 66.

B. Freedom from torture and other inhuman or degrading treatment

or punishment

15. Overcrowding has been established to constitute a severe form of ill-treatment,56

inhuman or degrading treatment57 and even torture.58 Poor material conditions are

exacerbated by overcrowding and adversely affect all individuals living or working in

places of detention. They contribute to tensions and deterioration of relations among

prisoners and between prisoners and personnel, which in turn increase the risk of

ill-treatment.59

16. Both international and regional human rights mechanisms have established breaches

of the prohibition of torture due to overcrowding, as detainees are forced to live for

prolonged periods in deplorable material conditions,60 unsuitable for a humane and

dignified existence,61 with very poor hygiene and lacking out-of-cell activities,62 adequate

nutrition and access to health services.63

C. Right to health

17. States must respect the right to health and ensure equal access for all persons,

including prisoners or detainees, to preventive, curative and palliative health services.64 The

Special Rapporteur on the right of everyone to the enjoyment of the highest attainable

standard of physical and mental health has specifically noted the link between

overincarceration,65 overcrowding and infringements upon the right to health,66 especially in

relation to the spread of infectious and communicable diseases, such as tuberculosis67 and

hepatitis C.68 This poses risks not only to the health of other detainees, but also to the staff

and even the general population once prisoners are being released.69

18. Other United Nations and regional human rights bodies have also reported the

negative impact of overcrowding upon the right to health of detainees through denial of,70

56 See CAT/OP/BRA/1, para 75.

57 See Council of Europe documents CPT/Inf (92) 3, para. 46, and CPT/Inf (2014) 26, para. 100. See

also www.achpr.org/files/sessions/12th-eo/mission-reports/promotion_mission-

2012/mission_report_mauritania_cpta_eng.pdf, para. 112 (ix); Kalashnikov v. Russia, European Court

of Human Rights Judgement (2002), para. 102; and Ananyev and Others v. Russia, European Court of

Human Rights Judgement (2012), paras. 143-148.

58 See CAT/OP/MLI/1, para. 49, and E/CN.4/2004/56, para. 49.

59 See CAT/OP/MDV/1, para. 210.

60 See CAT/OP/MLI/1, paras. 49, 80; CCPR/C/ALB/CO/2, para. 16; and communication

No. 2218/2012, Abdullayev v. Turkmenistan, Views adopted by the Human Rights Committee on 25

March 2015, paras. 5.3 and 7.3. See also Council of Europe document CPT/Inf (2014) 15, para. 126,

and Boyce v. Barbados, Inter-American Court of Human Rights Judgement (2007), para. 94.

61 See A/68/295, para. 45, and Montero-Aranguren v. Venezuela, Inter-American Court of Human

Rights Judgement (2006), para. 99.

62 See CAT/OP/MEX/1, para. 184, and Boyce v. Barbados, Inter-American Court of Human Rights

Judgement (2007), para. 94.

63 See A/HRC/25/60/Add.1, para. 85.

64 See A/65/255, para. 59.

65 See A/65/255, para. 68.

66 See A/HRC/23/41/Add.1, para. 43.

67 See A/HRC/23/41/Add.1, para. 52.

68 See A/65/255, para. 29.

69 See A/HRC/23/41/Add.2, para. 31; A/65/255, para. 29; and CAT/C/54/2, para. 77.

70 See A/HRC/22/53/Add.2, para. 66

or inadequate access to, medical treatment,71 insufficient mental health services,72 lack of

health-care professionals in places of detention,73 failure to implement effective harm-

reduction programmes and drug-dependence treatment.74 Overcrowding has also been

found to be a root cause of entirely preventable medical conditions.75

19. There are also various factors associated with overcrowding that contribute to the

denial of the right to health, such as poor natural light and ventilation in places of

detention,76 extreme temperatures,77 poor hygiene and sanitation standards,78 insufficient

provision for personal hygiene,79 and infestation with insects and vermin.80 Ultimately,

infringements on the right to health may adversely impact on the right to life of detainees.81

D. Right to food, water and sanitation

20. The Special Rapporteur on the human right to safe drinking water and sanitation

emphasized that the lack of access to sanitation can be tantamount to inhuman or degrading

treatment in certain circumstances, especially in the context of detention. The Special

Rapporteur noted that overcrowding in places of detention can seriously hinder the ability

of the authorities to ensure safe drinking water and proper sanitation.82

21. The Special Rapporteur on the right to food has highlighted the frequent

infringements upon the right to adequate food of detainees83 and emphasized State

responsibility to provide those in detention with adequate food.84 The Special Rapporteur

has also underlined the negative impact of overcrowding on the right to food.85

22. Numerous other United Nations and regional human rights bodies have also reported

serious infringements upon detainees’ right to safe water and sanitation, as well as the right

to food. These infringements, attributed to overcrowding, include failure of the State to

provide adequate quality and quantity of food;86 adequate washing87 and toilet facilities;88

71 See CEDAW/C/GRC/CO/7, para. 34; CAT/C/BLR/CO/4, para. 19; CAT/C/ECU/CO/3, para. 24;

CAT/C/GAB/CO/1, para. 17; and CAT/C/LKA/CO/3-4, para. 14.

72 See A/HRC/23/41/Add.2, para. 40, and CAT/C/AUS/CO/4-5, para. 11.

73 See CAT/C/GRC/CO/5-6, para. 14, and CAT/C/PER/CO/5-6, para. 10.

74 See A/65/255, para. 29.

75 See A/HRC/25/60/Add.1, para. 54, and www.achpr.org/files/sessions/12th-eo/mission-

reports/promotion_mission-2012/mission_report_mauritania_cpta_eng.pdf, para. 76.

76 See CAT/C/MDA/CO/2, para. 18; A/HRC/22/53/Add.2, para. 47; and Tibi v. Ecuador, Inter-

American Court of Human Rights Judgement (2004), para. 150.

77 See A/HRC/25/60/Add.1, para. 44, and CAT/OP/BEN/1, para. 180.

78 See CAT/C/PER/CO/5-6, para. 10; CAT/C/SYR/CO/1, para. 30; and CAT/C/LKA/CO/3-4, para. 14.

79 See A/HRC/25/60/Add.1, para. 54.

80 See CAT/OP/BEN/1, para. 218; CAT/OP/BRA/1, para. 105; www.achpr.org/files/sessions/12th-

eo/mission-reports/promotion_mission-2012/mission_report_mauritania_cpta_eng.pdf, para. 76; and

Council of Europe document CPT/Inf (2015) 12, para. 66.

81 See CAT/C/TGO/CO/2, para.13.

82 See A/HRC/12/24, paras. 45-47.

83 See A/HRC/25/57/Add.1, paras. 70-72, 83(n), and A/HRC/22/50/Add.2, paras. 12-14.

84 See A/HRC/22/50/Add.2, para. 13. See also CAT/OP/MEX/1, para. 112.

85 See A/HRC/25/57/Add.1, paras. 70, and A/HRC/22/50/Add.2, para. 14.

86 See CAT/C/BLR/CO/4, para. 19; CAT/C/BGR/CO/4-5, para. 21; CAT/C/KHM/CO/2, para. 19;

CAT/C/GAB/CO/1, para. 17; CAT/C/MAR/CO/4, para. 19; and A/HRC/22/53/Add.2, para. 66.

87 See www.achpr.org/files/sessions/37th/mission-

reports/ethiopia/misrep_specmec_priso_ethopia_2004_eng.pdf, p. 20; A/HRC/25/60/Add.1, para. 54;

and Council of Europe document CPT/Inf (2014) 26, para. 110.

safe drinking water89 and sanitation,90 including access to such basic hygiene products such

as soap and toilet paper free of charge,91 and adequate sleeping arrangements, including a

clean mattress and bedding.92

23. Failure to ensure proper implementation of these rights has led to violations of other

rights, including the right to safety and security, as inadequate food provision has led to

tensions in places of detention and even violence,93 as well as freedom from cruel, inhuman

or degrading treatment.94 Clean water supply, effective sewage and waste disposal, hygienic

food preparation and general hygiene practices are all essential to a clean and healthy

prison environment and to preventing and controlling the spread of disease,95 and their

absence can also negatively affect the right to health96 and even the right to life.97

E. Right to education and rehabilitation

24. Underlining that detainees constitute a highly marginalized group facing endemic

violations of their right to education, the Special Rapporteur on the right to education has

emphasized the negative impact of overcrowding on the exercise of this right.

Overcrowding puts significant strain on the available resources as demand exceeds the staff

and facilities available.98 It is common that people in places of detention are locked in

overcrowded cells for 23 hours a day without any purposeful out-of-cell activity99 and no

rehabilitation programmes,100 without possibilities to continue their education101 or take part

in skills development and vocational programmes.102

88 See www.achpr.org/files/sessions/37th/mission-

reports/ethiopia/misrep_specmec_priso_ethopia_2004_eng.pdf, p. 33. See also Council of Europe

document CPT/Inf (2014) 26, para. 110; A/HRC/25/71, para. 35; and CAT/OP/BEN/1, para. 208.

89 See A/HRC/13/39/Add.5, para. 91; A/HRC/25/60/Add.1, para. 44; CCPR/C/BGR/CO/3, para. 18; and

CCPR/C/NIC/CO/3, para. 17.

90 See CAT/C/FIN/CO/5-6, para. 14; CAT/C/GRC/CO/5-6, para. 14; CAT/C/MDA/CO/2, para. 18;

CCPR/C/JAM/CO/3, para. 23; CAT/OP/BEN/1, para. 208; and CPT/Inf (2014) 26, para. 101.

91 See CAT/OP/BRA/1, para. 106, and CAT/OP/MEX/1, para. 187.

92 See CAT/OP/PRY/1, para. 148; CAT/OP/BRA/1, para. 137; A/HRC/22/53/Add.2, para. 47; Tibi v.

Ecuador, Inter-American Court of Human Rights Judgement (2004), para. 150;

www.achpr.org/files/sessions/12th-eo/mission-reports/promotion_mission-

2012/mission_report_mauritania_cpta_eng.pdf, para. 75; and Council of Europe document CPT/Inf

(2015) 12, para. 65.

93 See CAT/C/TGO/CO/2, para. 13, and CAT/OP/PRY/1, para. 183.

94 See Montero-Aranguren v. Venezuela, Inter-American Court of Human Rights Judgement (2006),

para. 99.

95 See A/HRC/23/41/Add.1, para. 52.

96 See CAT/C/PER/CO/5-6, para. 10; CAT/OP/BEN/1, para. 218; and

www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, p. 3.

97 See CAT/C/TGO/CO/2, para. 13, and CCPR/C/MOZ/CO/1, para. 14.

98 See A/HRC/11/8, para. 12, and Council of Europe document CPT/Inf (97) 10, para. 13.

99 See Boyce v. Barbados, Inter-American Court of Human Rights Judgement (2007), para. 93-94;

Council of Europe document CPT/Inf (2014) 26, para. 93; CAT/C/BGR/CO/4-5, para. 21; and

A/HRC/13/39/Add.5, para. 234.

100 See Juvenile Reeducation Institute v. Paraguay, Inter-American Court of Human Rights Judgement

(2004), para. 134.24; Council of Europe document CPT/Inf (2014) 31, para. 56; A/HRC/25/60/Add.1,

para. 85; and A/HRC/22/53/Add.2, para. 47.

101 See CAT/OP/MEX/1, para. 170.

102 See www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, p. 54; and Council of Europe document

CPT/Inf (2014) 21, para. 43.

25. Bearing in mind the importance of rehabilitation as an overarching aim of

imprisonment, the adverse impact of overcrowding on the availability of rehabilitation

services is of particular concern.103

F. Freedom of religion or belief

26. The Special Rapporteur on freedom of religion or belief has emphasized that all

persons deprived of their liberty have the right to freedom of religion or belief.104

Overcrowding has an adverse effect on all aspects of detention, which in turn negatively

impacts detainees’ freedom of religion or belief. Often there is insufficient space for

religious practices,105 the possibility to observe religious rituals on certain days is

hindered,106 religious scripts are unavailable107 and there are reportedly problems with

regard to the type of meals suitable for members of different faiths.108

G. Right to privacy, family life and rights of family members

27. Overincarceration and overcrowding mean that those in detention live in very

crammed surroundings, thereby leading to a serious infringement of their right to privacy.109

The independent expert on the situation of human rights in Haiti has reported that the

severity of overcrowding in detention facilities is such that each detainee has no more than

40cm 2

of living space.110 The Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment reported situations in which inmates have to lie head to

toe in a foetal position, sleep in shifts or sitting up, owing to the lack of space as a result of

overcrowding.111 Many detainees also lack privacy even for such basic functions as using

toilet facilities.112

28. Overcrowding may lead to restrictions upon the right to maintain contacts with

relatives because facilities usually allocated for family visits may be reallocated for other

purposes owing to overcrowding. Moreover, some countries resort to so-called “balancing”

programmes whereby detainees are reallocated to different places of detention in order to

alleviate problems of overcrowding. This results in detainees being moved far away from

their families, adversely impacting their visit entitlements.113 This infringes not only upon

detainees’ human rights but also on those of their family members. It may also have

negative impact upon the fair trial rights as detainees are moved far from the courts and

legal services.

103 See A/HRC/25/60/Add.1, para. 85; A/HRC/22/53/Add.2, para. 47; and Pacheco Teruel et al. v.

Honduras, Inter-American Court of Human Rights Judgement (2012), para. 96.

104 See A/60/399, para. 73.

105 See www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, p. 46.

106 See A/HRC/10/8/Add.2, para. 53.

107 See A/60/399, para. 70.

108 See A/HRC/4/21/Add.1, paras. 23 and 58-60, and A/HRC/10/8/Add.2, para. 53.

109 See A/HRC/25/71, para. 35.

110 See A/HRC/25/71, para. 32.

111 See A/HRC/25/60/Add.1, para. 43.

112 See Montero-Aranguren v. Venezuela, Inter-American Court of Human Rights Judgement (2006),

para. 99.

113 See CPT/Inf (2014) 13, para. 111.

29. Furthermore, overincarceration may negatively affect family members who lose the

main breadwinner, thereby adversely impacting on the best interests of the affected child or

children.114

H. Right to equality and non-discrimination

30. The effects of overincarceration and overcrowding in places of detention are

especially negative for members of groups such as women,115 children,116 persons with

disabilities,117 racial minorities118 and indigenous peoples,119 and non-citizens. Owing to

overstretched resources, the specific needs of persons belonging to these groups cannot be

addressed. Failure to separate pretrial detainees from others,120 adults from children121 and

men from women122 has been alleged to lead to exploitation and sexual violence.123 The

specific needs of women and girls in relation to their right to health are disregarded,124 in

particular in the case of pregnant women, girls and nursing mothers.125 There are reports of

young children being detained with their mothers126 and failure to respect the special needs

of children in detention.127 Places of detention are reported to have insufficient number of

female128 or minority129 staff, which impacts adversely upon women130 and members of

minorities in detention. Furthermore, persons with disabilities are held in environments that

include areas inaccessible to them131 and often prisoners with mental illnesses are not

separated from others.132

31. Overcrowding and the associated failure to address the needs of the members of

these groups in detention has made them particularly vulnerable to violence,133 and can lead

114 See www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, chapter F(i); and M v. The State,

Constitutional Court of South Africa Judgement (2007). See also CRC/C/GC/14, para. 69.

115 See CEDAW/C/BRA/CO/7, para. 32.

116 See CAT/C/LKA/CO/3-4, para. 14, and A/HRC/28/68, para. 41. See also Juvenile Reeducation

Institute v. Paraguay, Inter-American Court of Human Rights Judgement (2004), para. 175.

117 See A/68/295, para. 45.

118 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16257&LangID=E.

119 See CAT/OP/NZL/1, para. 33.

120 See CAT/C/GAB/CO/1, para. 17; CAT/C/MUS/CO/3, para. 14; CAT/C/LKA/CO/3-4, para. 14; and

CCPR/C/MOZ/CO/1, para. 14.

121 See E/C.12/LKA/CO/2-4, para. 32; www.achpr.org/files/sessions/12th-eo/mission-

reports/promotion_mission-2012/mission_report_mauritania_cpta_eng.pdf, para. 38;

CAT/C/BLR/CO/4, para. 19; CAT/C/SYR/CO/1, para. 30.

122 See CAT/C/KHM/CO/2, para. 19, and CCPR/C/BDI/CO/2, para. 18.

123 See SRT A/HRC/28/68, para. 68; Juvenile Reeducation Institute v. Paraguay, Inter-American Court

of Human Rights Judgement (2004), para. 175; CAT/C/BOL/CO/2, para. 18; and A/HRC/28/68, para.

58.

124 See A/HRC/22/50/Add.2, para. 13; CEDAW/C/BRA/CO/7, para. 32; and

www.achpr.org/files/sessions/37th/mission-

reports/ethiopia/misrep_specmec_priso_ethopia_2004_eng.pdf, p. 33.

125 See CEDAW/C/BRA/CO/7, para. 32-33.

126 See CAT/C/KEN/CO/2, para. 12, and CAT/C/RWA/CO/1, para. 19.

127 See CAT/OP/MEX/1, para. 187.

128 See CPT/Inf (2014) 13, para. 53, and CAT/C/KHM/CO/2, para. 19.

129 See CPT/Inf (2014) 13, para. 53.

130 See CPT/Inf (2014) 13, para. 53.

131 See A/68/295, para. 45.

132 See CAT/OP/HND/1, para. 191.

133 See CAT/OP/PRY/1, para. 148, and Council of Europe document CPT/Inf (2015) 12, para. 54. See

also www.achpr.org/files/sessions/52nd/inter-act-reps/185/activty_report_prisons_eng.pdf, p. 15.

to violations of their human rights, including detainees’ right to life134 as well as safety and

security of their family members, who may become victims of extortion.135 Furthermore, the

Special Rapporteur on torture and other cruel, inhuman or degrading treatment or

punishment has noted that, in severely overcrowded prisons, meaningful activities such as

work, education and recreation are only made available to “a few privileged prisoners who

‘cooperate’ and/or pay the necessary corruption fees”.136

III. The main causes of overincarceration and overcrowding

32. The main causes of overincarceration and overcrowding include deficiencies within

the criminal justice system; excessive recourse to pretrial detention; absence and/or

improper administration of alternatives to detention; specific sentencing policies; and lack

of oversight over the places of detention.

A. Deficiencies within the criminal justice system

33. The European Committee for the Prevention of Torture noted that it had encountered

high incarceration rates and resultant severe prison overcrowding and argued that “the fact

that a State locks up so many of its citizens cannot be convincingly explained away by a

high crime rate; rather, the general outlook of members of the law enforcement agencies

and the judiciary must, in part, be responsible”.137 An effective criminal justice system138

with all actors — including the police, prosecution, defence lawyers and the judiciary —

working efficiently and according to the rule of law and requirements under international

human rights law is essential to ensure that the cases of persons who come in contact with

this system are dealt with efficiently and in accordance with the law. In reality, however,

criminal justice systems around the world encounter major challenges and shortcomings.

34. The so-called “zero tolerance polices” adopted in many States have led to a high

increase in the number of arrests,139 even for minor offences such as drunkenness, crossing

the railway, or shoplifting,140 and to people being held in custody for long periods.141

Moreover, some practices, such as police being rewarded for making arrests,142 and

overbroad legislation, rules and regulations143 have reportedly led to arbitrary arrests. In

turn, this situation has contributed significantly to overincarceration and overcrowding.

35. Following arrest, the efficiency with which authorities are able to deal with the case

of each detainee is crucial to reducing overcrowding and overincarceration. Pretrial

134 See CAT/C/AUS/CO/4-5, para. 11.

135 See CAT/C/MEX/CO/5-6, para. 19.

136 See A/HRC/13/39/Add.5, para. 234.

137 See Council of Europe document CPT/Inf/C (2002) 1 [Rev. 2015] Section: 7/86, para. 28.

138 See A/HRC/25/60/Add.1, para. 84.

139 See Council of Europe document CPT/Inf (2014) 13, para. 37;

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/ACLU.pdf;

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/CNDH_Mexico.pdf; and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/PDDH_Nicaragua.pdf.

140 See www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf,chapter F(i).

141 See A/HRC/19/57/Add.2, para. 38.

142 See CAT/OP/MEX/1, para. 182.

143 See CCPR/C/HND/CO/1, para. 13; Pacheco Teruel et al. v. Honduras, Inter-American Court of

Human Rights Judgement (2012), para. 101; and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/BCHR_BIRD_ADHRB.pdf.

detention is often prolonged owing to inadequate police investigations, lost case files and a

shortage of judges. In many States, there are huge backlogs of cases, especially involving

pretrial detention, and an urgent need to increase judicial capacity to deal with these.144

Furthermore, owing to lack of resources and trained officers, alternative measures and

parole systems are not implemented.145 The efficiency of the criminal justice system is also

negatively impacted by inappropriate communication systems between prosecutors, public

defenders and judges.146 These deficiencies within the criminal justice system also mean

that the status of those in detention is not reviewed at regular intervals.147 Furthermore,

many States lack comprehensive and well-resourced legal aid programmes.

36. Moreover, many individuals remain in detention owing to the absence of centralized

registers and the lack of an effective system to monitor the length of pretrial detention or

progress in the implementation of sentencing.148 In the absence of such registers, and with

poor communication between criminal justice actors,149 authorities simply lack accurate

knowledge about who is due to be released. This not only prolongs pretrial detention but

also keeps those who have already completed their sentence in custody, thereby

contributing to overcrowding.150

B. Excessive recourse to pretrial detention

37. The Subcommittee on Prevention of Torture has stated that the excessive use and

length of pretrial detention is a major cause of overcrowding,151 and that the overuse and

misuse of pretrial detention needs to be tackled as a matter of priority.152 Other

international153 and regional154 bodies have also reported an excessive recourse to pretrial

detention, a measure that should only be a last resort and subject to certain conditions,155

but that in practice is often applied even to such minor cases as theft of a mobile

telephone,156 a pen or a chicken.157 In some countries, pretrial detainees reportedly

144 See CAT/C/KEN/CO/2, para. 15; CAT/C/TGO/CO/2, para. 12; A/HRC/19/57, para. 36;

A/HRC/25/71, paras. 34 and 41; and www.achpr.org/files/sessions/37th/mission-

reports/ethiopia/misrep_specmec_priso_ethopia_2004_eng.pdf, p. 52.

145 See A/HRC/25/60/Add.1, paras. 84, 99; and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/PDH_Guatemala.pdf.

146 See CAT/OP/HND/1, para. 184; CAT/OP/PRY/2, para. 33.

147 See CAT/OP/BEN/1, para. 160; CAT/OP/HND/1, para. 184.

148 See Montero-Aranguren v. Venezuela, Inter-American Court of Human Rights Judgement (2006),

para. 60(9); CAT/C/KHM/CO/2, para. 19.

149 See CAT/OP/PRY/2, para. 33; CAT/OP/HND/1, para. 184.

150 See CAT/C/RWA/CO/1, para. 19; CAT/OP/BEN/1, para. 161; CAT/OP/PRY/1, para. 46.

151 See CAT/C/54/2, para. 77; and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/CNCPPDH_Algeria.pdf.

152 See CAT/C/46/2, para. 52, and CAT/C/54/2, para. 83.

153 See CAT/C/TGO/CO/2, para. 12; A/HRC/25/60/Add.1, para. 84; E/CN.4/2004/56, para. 49;

A/HRC/19/57, para. 48; and CCPR/C/TUR/CO/1, para. 17.

154 See www.achpr.org/files/sessions/37th/mission-

reports/ethiopia/misrep_specmec_priso_ethopia_2004_eng.pdf, p. 24;

www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, Chapter F; Council of Europe document

CPT/Inf (2014) 15, para. 126; and CPT/Inf/C (2002) 1 [Rev. 2015] Section: 7/86, para. 28.

155 See CAT/C/54/2, para. 84, and Council of Europe document CPT/Inf (2014) 31, para. 56.

156 See CAT/OP/MLI/1, para. 29.

157 See www.achpr.org/files/sessions/52nd/inter-act-reps/185/activty_report_prisons_eng.pdf, p. 10.

constitute the majority of the prison population,158 and over 90 per cent of detainees in some

settings.159

C. Absence and/or improper administration of alternatives to detention

38. According to the Special Rapporteur on Prisons and Conditions of Detention of the

African Commission on Human and Peoples’ Rights, the “increase in prison population

cannot alone be attributed to higher rates in crime. Simply put, in most jurisdictions, there

is the belief that prison is preferable to any alternative; thus, the punitive element that

characterizes this sanction remains the cornerstone of modern day correctional and penal

systems. In spite of the proven efficiency and effectiveness of non-custodial alternatives,

harsher penalties in the form of longer prison sentences continue to be imposed”.160

39. This view is shared by other international161 and regional162 bodies who point to the

absence of alternatives to detention or shortcomings in their implementation as a significant

contributor to overincarceration and overcrowding. Further contributing factors are the

unavailability, dysfunctionality or excessively onerous conditions of bail;163 the

ineffectiveness of the probation service and little recourse to parole;164 the absence of or a

poorly functioning system of alternatives to detention, including community service,165

electronic supervision and house arrest;166 and the reluctance of prosecutorial and judicial

authorities to employ non-custodial sentences,167 or the lack of their availability to the

judiciary, especially in less serious cases, and lack of encouragement to use those

options.168

D. Sentencing policies

40. The policies that a State puts in place in response to crime have direct implications

for the number of detainees and the length of time that they spend in detention. So-called

“zero tolerance policies” have increased the number of criminal convictions with custodial

sentences and — coupled with the low acquittal rate and common use of detention — have

led to overcrowding in prisons.169

41. As stated by the Working Group on Arbitrary Detention, “[m]any countries have

seen an increasingly rapid rate of legislative response to criminal acts, and are now

158 See CAT/C/TGO/CO/2, para. 12, and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/OSJI.pdf.

159 See A/HRC/25/71, para. 33.

160 See www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, p. 2.

161 See CAT/OP/BRA/1, para. 96; CCPR/C/AGO/CO/1, para. 19; A/HRC/25/60/Add.1, para. 84; and

CAT/C/KHM/CO/2, para. 19.

162 See Council of Europe document CPT/Inf (2014) 29, para. 33.

163 See CAT/OP/MDV/1, para. 169; CAT/C/KEN/CO/2, para. 15; and

www.achpr.org/files/sessions/37th/mission-

reports/ethiopia/misrep_specmec_priso_ethopia_2004_eng.pdf, p. 52.

164 See CCPR/C/AGO/CO/1, para. 19; A/HRC/25/60/Add.1, para. 84; and Council of Europe document

CPT/Inf (2014) 18, para. 35.

165 See www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, Chapter F(i).

166 See CPT/Inf (2014) 29, para. 33.

167 See CPT/Inf (2014) 18, para. 35.

168 See CPT/Inf (2014) 21, para. 42.

169 See A/HRC/19/57/Add.2, para. 38.

beginning to experience the combined effects of habitual offender laws, generally increased

minimum sentences with less discretion available to judges in each individual case, and

post-conviction preventive detention”,170 which leads to overincarceration and

overcrowding.

42. The following phenomena have been reported as factors contributing to

overincarceration and overcrowding: the failure to include time served on custodial remand

in sentence calculation;171 the application of mandatory sentences especially for minor, non-

violent crimes172 and severe penalties for drug-related offences;173 the imposition of

excessively lengthy prison sentences, especially life sentences,174 contrary to the principle

of proportionality;175 the absence of reasonable sentencing guidelines that would permit the

reduction of excessively lengthy sentences;176 the lack of discretion for judges when

sentencing, which prevents them from taking into consideration the individual

circumstances of the detainee and the case;177 a great limitation to the remission of

sentences;178 and ambiguities in the legislation that lead to unnecessary detention.179

E. Lack of oversight of places of detention

43. Lack of oversight of places of detention is also a factor contributing to

overincarceration and overcrowding. There are reports of improper record keeping in places

of detention even to the extent that authorities do not know the exact number of detainees

held at any given time or their status,180 and are unaware of their living conditions. At

times, beds are so close together that, at full capacity or even at somewhat below capacity,

living conditions would still be extremely precarious.181 Owing to infrequent or absent

visits to places of detention, prosecutors and/or the judiciary182 lack proper understanding of

the levels of overcrowding and consequences of overincarceration. They are therefore

unable to take this factor into consideration when making decisions regarding detention,

sentencing or release.

170 See A/HRC/27/48, para. 73.

171 See CAT/OP/MDV/1, para. 220.

172 See A/HRC/25/60/Add.1, para. 99, and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/PRI.pdf.

173 See A/HRC/10/44, para. 55, and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/ACLU.pdf.

174 See www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, Chapter F(i), and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/PRI.pdf.

175 See CAT/OP/MDV/1, para. 220.

176 See A/HRC/25/60/Add.1, para. 99.

177 See A/HRC/27/48, para. 73.

178 See A/HRC/25/60/Add.1, para. 84.

179 See Pacheco Teruel et al. v. Honduras, Inter-American Court of Human Rights Judgement (2012),

para. 105.

180 See A/HRC/22/53/Add.2, para. 46, and CAT/OP/BEN/1, para. 161.

181 See A/HRC/25/60/Add.1, para. 40.

182 See CAT/OP/MLI/1, para. 29.

IV. Addressing overincarceration and overcrowding and their human rights implications

A. Need for a proactive and holistic approach

44. Overincarceration and overcrowding cannot be tackled overnight, and the

complexity of these phenomena requires a combination of legislative, administrative,

political and economic measures, including a comprehensive policy and an action plan to

implement it. This view is shared by national institutions,183 regional mechanisms184 and

international bodies.185 Both regional and international bodies have pointed out that, while

measures such as the construction of new and the renovation of existing detention facilities

may provide an immediate, short-term relief to the overcrowding problem, they have not

been found to constitute an effective and lasting solution.186

45. As stated by the European Committee for the Prevention of Torture, the only viable

way to control overcrowding is to adopt policies designed to limit or moderate the number

of persons sent to prison.187 In order to achieve this, the Committee argues in favour of a

more concerted, holistic and proactive approach, based on wide-ranging discussions

involving all relevant parties, including parliamentarians, prosecutors, judges and

representatives of monitoring bodies.188

B. Right to challenge detention, assistance by legal counsel and access

to legal aid

46. The Working Group on Arbitrary Detention, in its Draft Basic Principles and

Guidelines on remedies and procedures on the right of anyone deprived of their liberty to

bring proceedings before a court, has stated that the right to challenge detention is a judicial

remedy designed to protect personal freedom and physical integrity and that it is a non-

derogable right.189

47. The right to challenge detention is an important tool for addressing the problem of

overcrowding given accounts of individuals being detained illegally, or when the pretrial

detention limits are not respected or indeed prisoners are not promptly released after

serving their sentence.190 In order to make this right effective, every detainee must be able

to take proceedings before an independent court, without substantial delay,191 and to appear

before the court in person. Furthermore, the burden of establishing the legal basis, as well

183 See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/NCHR_Greece.pdf.

184 See Neptune v. Haiti, Inter-American Court of Human Rights Judgement (2008), para. 183, and

Council of Europe document CPT/Inf (2014) 31, para. 56; www.achpr.org/files/sessions/52nd/inter-

act-reps/185/activty_report_prisons_eng.pdf, p. 22.

185 See S/2015/157, para. 26; A/HRC/25/71, paras. 41-42; CAT/OP/BEN/1, para. 158; CAT/OP/ARG/1,

para. 59; www.ohchr.org/Documents/Issues/RuleOfLaw/OverIncarceration/UNODC.pdf.

186 See www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, p. 64; CPT/Inf (2013) 35, para. 8; CPT/Inf

(2014) 31, para. 35; CAT/C/IRL/CO/1, para. 11; CCPR/C/BIH/CO/2, para. 11; A/HRC/25/60/Add.1,

para. 84; CCPR/C/URY/CO/3, para. 9; CAT/OP/MDV/1, para. 220.

187 See Council of Europe document CPT/Inf (2014) 13, para. 39.

188 See ibid., and www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/OSJI.pdf.

189 See A/HRC/30/37, para. 2, and Principle 4.

190 See CCPR/C/TUR/CO/1, para. 17, and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/QUNO.pdf.

191 See A/HRC/27/47, para. 16.

as the reasonableness, necessity and proportionality of detention, lies with the authorities

responsible for the detention.192

48. Moreover, the Draft Basic Principles and Guidelines on remedies and procedures on

the right of anyone deprived of their liberty to bring proceedings before a court provide that

anyone deprived of their liberty shall, at any time during their detention, have the right to

legal assistance by counsel of choice and access to legal aid.193 While lawyers are the first

providers of legal aid, the United Nations Principles and Guidelines on Access to Legal Aid

in Criminal Justice Systems also suggest that States involve a wide range of stakeholders as

legal aid service providers, including non-governmental organizations, community-based

organizations, religious and non-religious charitable organizations, professional bodies and

associations, academia and paralegals.194

C. Appropriate use of places of detention

49. The specific purpose for which detention places, including prisons and police

stations, are built or established195 needs to be taken into account when persons are

detained. Facilities such as police stations must be used exclusively for short detention as

these are not suited to extended custody and lack the necessary space, sanitation and other

facilities required to ensure adequate conditions of detention.196 The capacity of places of

detention must be assessed realistically and any such assessment must be based on

allocation of reasonable space for each detainee.197 Ensuring an effective register system for

tracking the detention period of each pretrial and sentenced detainee is essential to allow

detention places to manage their capacities.198 Finally, all detention places should be staffed

adequately so that they can be run effectively and with due respect to the human rights of

those detained.

50. Equally, the negative impact of overcrowding is exacerbated for individuals held in

detention places that are not suitable for their specific needs, such as children, women,

elderly persons, persons with disabilities and mentally ill.199 Furthermore, persons who are

remanded in custody or sentenced should not continue to be detained in police stations,

unlike the practice in some States due to the overcrowding in many prisons.200

51. In addition, administrators of places of detention should not be left to cope with the

phenomenon of overcrowding201 and there should be an effective communications system

between the various actors of the criminal justice system to ensure that detention places are

192 See A/HRC/30/37, Principle 13.

193 See A/HRC/30/37, Principle 9.

194 See General Assembly resolution 67/187, annex, paras. 9 and 10;

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/OSJI.pdf;

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/PRI.pdf.

195 However, there are also reports of detainees being held in places which have never been intended for

detention use, which considerably adds to the problems caused by overcrowding. See

www.achpr.org/files/sessions/12th-eo/mission-reports/promotion_mission-

2012/mission_report_mauritania_cpta_eng.pdf, para. 75.

196 See A/HRC/13/39/Add.5, para. 91.

197 See A/HRC/22/53/Add.2, para. 46, and A/HRC/25/60/Add.1, para. 40.

198 See CAT/OP/PRY/1, para. 46; CAT/C/TGO/CO/2, para. 13; and CAT/OP/BEN/1, para. 161.

199 See CAT/C/GBR/CO/5, para. 31; CCPR/C/FIN/CO/6, para. 10; A/HRC/28/68, para. 41. See also the

African Commission on People’s and Human Rights, Report of Promotion Mission to Nigeria (2009), available from www.achpr.org/states/nigeria/missions/promo-2009/; and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/CRIN.pdf.

200 See Council of Europe document CPT/Inf (2014) 26, para. 13.

201 See Council of Europe document CPT/Inf (2014) 13, para. 39.

not expected to hold people beyond their capacities. Practices such as a legal prohibition on

overcrowding202 should be considered favourably.

D. Pretrial detention as a last resort

52. Since excessive recourse to pretrial detention is one of the major causes of

overincarceration and overcrowding around the world,203 strict adherence to relevant

international norms and standards will go a long way in addressing these phenomena.

Pretrial detention should only be a measure of last resort.204

53. Furthermore, as stressed by the Human Rights Committee in its general comment

No. 35, “[d]etention pending trial must be based on an individualized determination that it

is reasonable and necessary taking into account all the circumstances, for such purposes as

to prevent flight, interference with evidence or the recurrence of crime”.205 This means that

pretrial detention should not be mandatory without regard to individual circumstances,206 a

practice common in some States,207 and that alternatives to pretrial detention must be duly

considered also when deciding upon continued pretrial detention. The time limits imposed

for pretrial detention must be strictly observed.208 Moreover, if the length of time that the

defendant has been detained for reaches the length of the longest sentence that could be

imposed for the crimes charged, the defendant should be released.209

E. Alternatives to custodial measures

54. Against the background of international standards on non-custodial measures,210 one

of the key recommendations of international,211 regional212 and national bodies213 regarding

the reduction of overincarceration and overcrowding rates is to develop a policy to increase

resort to non-custodial measures and to alternatives to custodial sentences. As stated by the

European Committee for the Prevention of Torture, “a strategy for the sustainable reduction

of the prison population should be put in place, which ensures that imprisonment is in

202 See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/Germany.pdf.

203 See CAT/C/54/2, para. 83.

204 See articles 9 and 14 of the International Covenant on Civil and Political Rights. See also rules 6.1

and 6.2 of the United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo

Rules); CCPR/C/GC/35, para. 38; and A/HRC/19/57, para. 48.

205 See CCPR/C/GC/35, para. 38.

206 See CCPR/C/GC/35, para. 38.

207 See CCPR/C/GC/35, para. 37.

208 See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/LICAMDH_Cameroon.pdf.

209 See CCPR/C/GC/35, para. 38; CAT/OP/MLI/1, para. 30.

210 See United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules),

A/RES/45/110, annex; United Nations Rules for the Treatment of Women Prisoners and Non-

custodial Measures for Women Offenders (the Bangkok Rules), A/RES/65/229, annex.

211 See CAT/C/ARM/CO/3, para. 19; CAT/C/BLR/CO/4, para. 19; CAT/C/FIN/CO/5-6, para. 14;

CAT/C/GTM/CO/5-6, para. 18; CAT/C/KEN/CO/2, para. 12; CAT/C/SYR/CO/1, para. 30;

E/CN.4/2004/56, para. 49; CCPR/C/IND/CO/1, para. 21; CCPR/C/PHL/CO/4, para. 19.

212 See Council of Europe document CPT/Inf (2015) 12, para. 44;

www.achpr.org/files/sessions/37th/mission-

reports/ethiopia/misrep_specmec_priso_ethopia_2004_eng.pdf, p. 45.

213 See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/Serbia.pdf;

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/SUHAKAM_Malaysia.pdf.

practice the measure of last resort at all stages of the criminal justice system, from pretrial

to the execution of sentences”.214

55. In order to render alternatives to detention effective, there must be a variety of

measures available at pretrial and conviction stage, such as affordable bail,215 automatic bail

for most offences,216 monetary fines, electronically monitored house arrest,217 community

service, juvenile punishment and supervision of paroles218 as well as remission or

commutation of sentences and parole or pardon system.219 Eligibility criteria for all these

alternative measures should be reviewed so as to widen their scope of application.220 In

particular, it is crucial that alternatives to custodial measures are duly considered for such

groups as women, elderly, children and people with disabilities.221

56. However, alternatives to detention should not only be provided for in legislation, but

also implemented in practice.222 In order to ensure that there is support from the

prosecutorial services, the judiciary and the public, it is essential that the system of

alternatives to detention is run efficiently223 and is adequately resourced.

F. Proportionate sentencing

57. Proportionate sentencing is an essential requirement of an effective and fair criminal

justice system. This requires that custodial sentences are imposed as measures of last resort

and applied proportionately to meet a pressing societal need.224

58. In order to meet the requirement of proportionality, States have been revising their

penal policies and legislation in order to reduce minimum and maximum penalties,225

decriminalize numerous categories of petty crimes and reduce criminal sanctions for

economic offences,226 thus contributing to reducing the total prison population.227 Equally,

reviewing sentencing policies to reduce or eliminate mandatory minimum sentences for

lesser, non-violent offences and to provide more reasonable sentencing guidelines in order

to reduce excessively lengthy sentences also has had a positive effect upon the reduction of

overincarceration and overcrowding.228 Appropriate action, including training, should be

taken vis-à-vis the prosecutorial and judicial authorities with a view to eliminating

unnecessary recourse to pretrial custody and modifying the sentencing practices.229 Special

214 See Council of Europe document CPT/Inf (2014) 31, para. 56. See also CAT/OP/NZL/1, para. 33.

215 See www.achpr.org/files/sessions/52nd/inter-act-reps/185/activty_report_prisons_eng.pdf, p. 22.

216 See Council of Europe document CPT/Inf(2014) 15, para. 98.

217 See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/Germany.pdf.

218 See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/OPO_Finland.pdf.

219 See A/HRC/25/60/Add.1, para. 99.

220 See A/HRC/25/60/Add.1, para. 99.

221 See CRC/C/AZE/CO/3-4, para. 75; A/HRC/22/53/Add.2, para. 92; A/HRC/28/68, para. 39; and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/QUNO.pdf.

222 See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/CNDH_Mexico.pdf.

223 See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/NCHR_Slovakia.pdf.

224 See E/CN.4/2006/7, para. 63, and CAT/OP/MDV/1, para. 220.

225 See CAT/C/MDA/CO/2, para. 18.

226 See Council of Europe document CPT/Inf (2014) 15, para. 98.

227 See www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/RussianFederation.pdf, and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/Kazakhstan.pdf.

228 See A/HRC/25/60/Add.1, para. 84.

229 See A/HRC/25/60/Add.1, para. 99, and Council of Europe document CPT/Inf (2015) 12, para. 44. See

also www.achpr.org/files/sessions/37th/mission-reports/prisons-

2004/misrep_specmec_priso_southafrica_2004_eng.pdf, para. F(i).

attention should be paid to the reduction of life sentences and ensuring a genuine possibility

of parole for all detainees, including those serving life sentences.230

G. Rehabilitation and reduction of reoffending rates

59. Providing effective rehabilitation services while in custody and following release as

well as addressing reoffending are important factors in reducing overcrowding.231 Targeted

crime-prevention programmes aimed at specific groups must be considered.232

60. Addressing reoffending rates is a complex task requiring a policy of reintegration

into society of former detainees233 and involvement from families234 as well as the

community concerned,235 so as to ensure effective reintegration. Further measures, such as

drug rehabilitation programmes in order to reduce the risk of reoffending, should be

considered favourably.236

H. Oversight and complaints mechanisms

61. Regular monitoring of places of detention is an important factor in addressing the

issues of overincarceration and overcrowding, as it increases transparency and efficiency of

the prison system237 and makes it possible to detect and combat the phenomena.238

Moreover, it is important that monitoring be carried out by a variety of relevant bodies and

institutions.

62. Oversight by the prosecutors and judiciary is important so that they are cognizant of

the prevalent conditions when taking decisions about detention.239 It is also hoped that the

draft Basic Principles and Guidelines on remedies and procedures on the right of anyone

deprived of their liberty to bring proceedings before a court will help to establish effective

mechanisms to ensure judicial oversight over all situations of deprivation of liberty.240

Inspections carried out by various professional bodies to ensure observance of such

standards as health and safety, building standards, hygiene and sanitation are paramount.241

Independent oversight by mechanisms such as national preventive mechanisms, national

230 See Vinter and others v. U.K., European Court of Human Rights Judgement (2013).

231 See CAT/OP/MLI/1, para. 67; CAT/OP/BEN/1, para. 151; and CAT/C/GBR/CO/5, para. 31. See also

www.achpr.org/files/sessions/52nd/inter-act-reps/185/activty_report_prisons_eng.pdf, pp. 21 and 22;

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/CHR_Philippines.pdf;

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/SUHAKAM_Malaysia.pdf; and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/RussianFederation.pdf.

232 See CEDAW/C/BRA/CO/7, para. 32.

233 See Council of Europe document CPT/Inf (2015) 12, para. 44; CPT/Inf (2015) 6, para. 46; and

www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/ElSalvador.pdf.

234 See www.ohchr.org/Documents/Issues/RuleOfLaw/OverIncarceration/UNODC.pdf.

235 See CAT/OP/NZL/1, paras. 33 and 34, and

www.ohchr.org/Documents/Issues/RuleOfLaw/OverIncarceration/UNODC.pdf.

236 See CAT/OP/MDV/1, para. 220.

237 See www.achpr.org/files/sessions/52nd/inter-act-reps/185/activty_report_prisons_eng.pdf, p. 23.

238 See Council of Europe document CPT/Inf (2014) 15, para. 100.

239 See CAT/OP/MLI/1, para. 29, and A/HRC/19/57, para. 36.

240 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16257&LangID=E.

241 See www.ohchr.org/Documents/Issues/RuleOfLaw/OverIncarceration/UNODC.pdf.

human rights institutions and civil society contributes to monitoring the overcrowding and

assisting authorities with its reduction.242

63. The existence and proper functioning of independent complaints mechanisms fully

accessible to detainees is also extremely important in order to alleviate overcrowding,

overincarceration and their negative effects.243

V. Conclusions

64. When resorting to deprivation of liberty, States infringe upon one of the core

human rights: the liberty of person. In order to justify such interference, States

should apply deprivation of liberty as a measure of last resort and only after

alternatives have been duly considered.

65. However, when deprivation of liberty is absolutely necessary, the State bears

special responsibility towards those it detains. This entails an obligation to treat all

prisoners with respect due to their inherent dignity and value as human beings, the

very first requirement of the United Nations Standard Minimum Rules for the

Treatment of Prisoners (Mandela Rules).244

66. The overuse of detention overstretches the often scarce prison resources, puts

detention staff in extremely difficult, even dangerous conditions, and has serious

implications on the human rights of persons deprived of their liberty. Moreover,

overincarceration also constitutes one of the major underlying causes of

overcrowding, which results in conditions that can amount to ill-treatment or even

torture.245

67. In order to address overincarceration and overcrowding and their human

rights implications, several recommendations are made in section IV of the present

document, including to adopt a proactive and holistic approach; ensure respect for

detainees’ right to challenge detention, to be provided with assistance by legal counsel

and to have access to legal aid; use places of detention only for the purpose for which

they are fit; use pretrial detention only as a last resort; develop and implement

alternatives to custodial measures during pretrial and post-conviction; review penal

policies and legislation to ensure proportionate sentencing; provide effective

rehabilitation services to contribute to reducing reoffending rates; and ensure the

existence and proper functioning of independent oversight and complaints

mechanisms.

68. Since deprivation of liberty by its very nature increases social disadvantage and

vulnerability to human rights violations, steps taken by States to fulfil and protect the

rights of those it detains are of immense significance.246 Proactive steps to address the

phenomena of overincarceration and overcrowding in places of detention not only

ensure that States comply with their international obligations, but also guarantee

detainees the dignity inherent to every human being.

242 See A/HRC/25/60/Add.1, para. 39; CAT/C/IRL/CO/1, para. 11; and CCPR/C/KAZ/CO/1, para. 17.

See also www.ohchr.org/Documents/Issues/RuleOfLaw/Overincarceration/

LICAMDH_Cameroon.pdf.

243 CCPR/C/AGO/CO/1, para. 19; CCPR/C/BDI/CO/2, para. 18; and CCPR/C/TCD/CO/2, para. 18.

244 E/CN.15/2015/L.6/Rev.1, annex, Rule 1.

245 A/68/295, para. 86.

246 A/HRC/11/8, para. 29.