Ambassador Martín García Moritán panelist at the event at United Nations "EOSG: rule of law- National practices on prision reform".
Statement
Let me thank the Missions of Turkey and Rwanda as well as the UN Rule of Law Resource and Coordination Group for co-hosting this important event.
In a time when the international community has recently adopted, at the highest level the development agenda for the next 15 years, which include Objective 16 that calls for providing access to justice for all and build effective, accountable and inclusive institutions at all levels, it is very timely to think about the situation of prisons in our countries.
It is a reality that the penal services around the world experience structural problems and major challenges to prison policy: overpopulation, human rights abuses of both prisoners and penitentiary personnel, high level of violence and conflict, corruption and inefficiency. It is therefore appropriate that we utilize spaces like this event to exchange good practices and lessons learnt on prison systems in connection with international standards. It is of particular interest to delve into issues of general administration of prisons, to explore comparative experiences related to alternatives to imprisonment and restorative justice, as well as strategies to promote social integration of prisoners.
According to article 10 paragraph 1 of the International Covenant on Civil and Political Rights, all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. This imposes on States parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty, and complements for them the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7 of the Covenant. Under paragraph 3 of the same article, the essential aim of the penitentiary shall be the reformation and social rehabilitation of prisoners. Moreover, juvenile offenders must be separated from adults and be accorded treatment appropriate to their age and legal status.
As a corollary of the rule contained in article 14, paragraph 2, according to which everyone charged with a criminal offence has the right to be presumed innocent until proved guilty, article 9 paragraph 3 sets forth the important principle that it shall not be the general rule that persons awaiting trial shall be detained in custody. Similarly, under article 10, paragraph 2 (a) accused persons should be segregated from convicted persons and be subject to separate treatment appropriate to their status as unconvicted persons. The recent General comment 35 of the Human Rights Committee on article 9 states that pretrial detention should not be mandatory for all defendants charged with a particular crime, without regard to individual circumstances, and that pretrial detention of juveniles should be avoided to the fullest extent possible.
As you know, the General Assembly of the UN, through the work of the Commission on Crime Prevention and Criminal Justice, has been very active in this field, producing a series of international standards of treatment of prisoners. Argentina is very proud of having contributing substantially to the recent revision of the “Standard Minimum Rules for the Treatment of Prisoners”, originally drafted in 1955 and adopted in their new form by the General Assembly on 17 December 2015 as the “Nelson Mandela Rules”.
The Standard Minimum Rules have been the universally acknowledged minimum standards for the detention of prisoners and that they have been of significant value and influence, as a guide, in the development of correctional laws, policies and practices since their adoption in 1955. However, it was felt that recent advances in correctional science and best practices should be reflected in a new version of the document so as to better promote safety, security and humane conditions for prisoners. The GA therefore decided in 2010 to establish an open-ended intergovernmental expert group to study the matter, initiating a process spanning a period of five years, including meetings in Vienna, Buenos Aires and Cape Town, that culminated with the new rules.
Argentina hosted and financed the second meeting of the Expert Group which was held in Buenos Aires from 11 to 13 December 2012. As a recommendation of this meeting, it was agreed that the revision should not lower any of the existing standards. On the basis of the nine preliminary areas of the Rules that had been identified for possible revision, the delegations of Argentina, Brazil, South Africa, the United States, Uruguay and Venezuela prepared a first consolidated and revised version of the Rules, which constituted the basis for the final document adopted by the CCPCJ and the GA.
The Nelson Mandela Rules now contain an expanded section of basic principles, including the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment. The independence of healthcare staff is assured, and extensive restrictions are placed on disciplinary measures, including the prohibition of solitary confinement beyond 15 days. Clear and detailed instructions are provided on issues such as cell and body searches, registration and record keeping, investigations into deaths and complaints of torture and other ill-treatment, the needs of specific groups, independent inspections of prisons, the right to legal representation among others.
Let me now turn to some regional developments in this regard. The Inter-American Commission of Human Rights of the Organization of American States (OAS) has devoted special attention to the situation of persons deprived of liberty in the Americas through various mechanisms, including the establishment in 2004 of a Rapporteur on the Rights of Persons Deprived of Liberty, and the adoption in 2008 of the “Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas”. In 2011, the Commission published a “Report on the Human Rights of Persons Deprived of Liberty in the Americas”, where it found that respect for the rights of persons deprived of liberty is one of the main challenges faced by the member States of the OAS, and that it is a complex matter that requires the design and implementation of medium- and long- term public policies to reverse structural shortcomings, as well as the adoption of immediate and urgent measures to address the situation of the inmate population.
The issue of prison reform has also been part of the activities developed in the framework of the Meetings of Ministers of Justice or Other Ministers or Attorneys General of the Americas (REMJA), which instituted a Working Group on Penitentiary and Prison Policies, in order to foster the exchange of information and experiences and strengthen cooperation among authorities responsible for penitentiary systems in the OAS Member States.
The Conference of Ministers of Justice of Ibero-American Countries (COMJIB) is another organization that has been particularly active in this issue. COMJIB groups the Ministries of Justice and peer institutions of 21 countries of the Ibero-American Community, with the view of studying and promoting juridical ways of cooperation between the member States. The Conference has its main headquarters in Madrid, and a regional one in Buenos Aires. Its composition is an added value that guarantees the principle of ownership and viability of the actions, as the Ministries are the ones who decide their own progress and developments.
One of COMJIB’s main line of action since 2008 is prison reform. This line seeks to promote improvements in the management of prison systems whilst giving priority to the guarantee and protection of human rights in prison. In this framework, it has focused its action in the training of personnel of prison systems; gender in prison; alternative means to deprivation of liberty, especially electronic surveillance methods; development of prison infrastructure with a human rights approach; social reinsertion of persons deprived of their liberty. In particular, at the initiative of Argentina, COMJIB adopted a Gender Model Programme in the context of deprivation of liberty, on the basis of the Bangkok Rules for the treatment of women prisoners. This document identifies conditions, difficulties, strategies and concrete actions to address the specific needs of women, such as the creation of Gender Offices, like the one in Argentina.
In addition, the Conference’s strategy 2015-2017 continues to deepen and broaden these lines of work, with special emphasis on the creation of action protocols and inter-agency coordination for the promotion of alternative measures to deprivation of liberty; as well as social and occupational insertion programmes for persons deprived of liberty, developed in in cooperation with the European Union.
No country can claim a perfect record in the area of treatment of prisoners and Argentina is no exception. The new authorities of my country are undertaking a thorough study and analysis of the penitentiary system, regarding its infrastructure, technology, human and material resources, in order to substantially improve the conditions of detention of persons deprived of liberty.
According to this view, one of the main strategic thrusts of our Government will be the comprehensive Federal Penitentiary Service reform, considering its regulatory update, under a criterion of fully respect of our Constitution, Human Rights treaties and international standards. This reform places particular emphasis on the importance of civilian management of penitentiary personnel, toward its demilitarization and the overcoming of its security force status.
Consequently with the political decision to pursue a reform in the penitentiary model, a “Working Table” has been convened, gathering all the relevant actors in the field (penitentiary system operators, officials of the three branches of government, representatives of the academic community and social agents), in order to achieve a multidisciplinary, intensive and integral approach on the subject.
This new penitentiary paradigm adopted by Argentina, is in line with the premises of the Nelson Mandela Rules, as well as the adoption of Goal 16 and its emphasis on rule of law and access to justice. We consider that Countries of all regions should use the momentum provided by the new international framework to review their prison systems in order to achieve more just, secure and inclusive societies for all.
1st March, 2016.
