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Statement by Ivan Šimonović, Assistant Secretary-General for Human Rights, at the “High-Level Launch of the Nelson Mandela Rules”, New York, 7 October 2015

Excellencies
Ladies and gentlemen,

I am very pleased to participate in this highly important event to present the “Nelson Mandela Rules”, also on behalf of the Secretary-General. The Secretary-General welcomes the revised rules and progress made. He notes the critical importance of protecting the human rights of all persons deprived of their liberty as one of the most vulnerable groups of individuals who risk abuse and ill-treatment.
Ladies and gentlemen,

During my time as Minister of Justice of Croatia, I recall being very surprised to learn that the original Standard Minimum Rules for the Treatment of Prisoners adopted in 1955, had remained in force without any revisions. How is it possible that standards adopted over 50 years ago, could still provide an adequate legal framework? It should be recalled that none of the international human rights treaties had been adopted when the original Standard Minimum Rules were adopted in 1955 and the only major human rights instrument of the time was the Universal Declaration of Human Rights.  It is obvious: updating the Standard Minimum rules was long overdue.

But, what ultimately triggered the decision to revise them?

It was the 2010 Salvador Declaration, of the 2010 Crime Congress held in Brazil, which for the first time contained a decision to include a request for a revision of the Standard Minimum Rules. 

But it was provisions of human rights instruments, jurisprudence of treaty bodies and recommendations of the special procedures of the Human Rights Council accumulating years of jurisprudence and standard setting that also helped set the stage.

Ladies and gentlemen,

Let me now highlight some of the improvements that have been made in the revision of the Standard Minimum Rules, from a human rights perspective

First, concerning the right to health of persons deprived of their liberty, the new Rules provide, inter alia that prisoners enjoy the same standard of health care as in the community and for continuity of treatment and care, including for HIV, tuberculosis and other infectious diseases, as well as for drug dependence. 

This provision is very important because the risk of transmission of HIV and other infectious diseases is much higher in prisons than in the general population.

Medical or scientific experimentation that may be detrimental to a prisoner’s health, is also now banned, although prisoners may be allowed, upon their free and informed consent and in accordance with applicable law, to participate in clinical trials and other health research accessible in the community, if these are expected to produce a direct and significant benefit to their health, and to donate cells body tissues or organs to a relative.
 
The new health rules also provide an absolute prohibition on torture and ill-treatment of prisoners, and further provides that health-care professionals, when examining a prisoner on admission or when providing medical care to a prisoner thereafter, shall note any signs of torture or ill treatment, and document such conditions and report this to the competent medical, administrative or judicial authority.

Second, the revised Rules also have much more specific provisions on solitary confinement.  They notably define solitary confinement as the confinement of prisoners for 22 hours or more a day without meaningful human contact; restrict the scope for application of solitary confinement; and define prolonged solitary confinement as solitary confinement in excess of 15 days. As pointed out by the Special Rapporteur on Torture, Juan E. Mendez in 2011, periods of solitary confinement exceeding 15 days constitute torture.

Third, the revised Rules also provide for the first time guidance on intrusive searches, including strip and body cavity searches, as well as restrictions on such searches, who may undertake them and how they should be carried out both for prisoners and visitors.  The new Rules provide notably that body cavity searches should not be applied to children.

Fourth, and another important change concerns the new Rules on the investigation of death, disappearance or serious injury while in prison. In each of these situations the prison director is to report, without delay, any custodial death, disappearance or serious injury to a judicial or other competent authority that is independent of the prison administration and mandated to conduct prompt, impartial and effective investigations into the circumstances and causes of such cases.

Lastly, I would note that the revised Rules allow access to legal representation and legal aid for prisoners in a variety of circumstances, including notably in situations where prisoners are the subject of serious disciplinary charges, where a breach of discipline is to be prosecuted as a crime, or for seeking information or making complaints.

Ladies and gentlemen,

While these are important advances, I would note, however, three areas where the revised Rules could be strengthened from a human rights perspective. 

The first concerns the prohibition of discrimination: the grounds of discrimination recognized in the revised Rules are those that are common to the two international Covenants on civil and political rights, and on economic, social and cultural rights respectively.  However, efforts to reflect the prohibition of discrimination on the basis of disability, the subject of an entire human rights treaty were rejected, in spite of efforts by the Human Rights Office, advocating for this during the review process.  I am also disappointed that sexual orientation and gender identity were not explicitly recognized as grounds for discrimination, given their recognition by most human rights treaty bodies.  There is substantial evidence of violence and mistreatment directed against gay, lesbian and transgender prisoners.

Second, I am concerned that some of the language in the revised Rules is at odds with terminology used by the Committee on the Rights of Persons with Disabilities, as the Rules do not contain an absolute ban on the deprivation of liberty on the basis of impairments and the principle of free and informed consent of the person concerned for health care.

Third, I am also concerned that the revised Rules did not revise the provision in the original Standard Minimum Rules that addresses so-called civil prisoners. Thus the revised Rules still recognize that some countries may legitimately imprison persons for debt.  This is in direct contradiction with article 11 of the International Covenant on Civil and Political Rights, which forbids imprisonment for a contractual obligation.

To conclude, on balance the revision of the Standard Minimum Rules represents a great step forward, and I am extremely pleased and encouraged that so many human rights issues that have been identified by the human rights treaty bodies, by the Special Procedures of the Human Rights Council, and by the United Nations High Commissioner for Human Rights, were successfully integrated into the revised Standard Minimum Rules.

It is my sincere hope that the “Mandela rules” will continue to be a work in progress, evolving over time to afford even greater protection to detainees.  We must not await another 60 years before setting the bar higher. Nelson Mandela would expect no less from us.

Thank you.