by Dr. Róisín Mulgrew
Lecturer in Criminology and Criminal Justice, University of Galway and Irish Centre for Human Rights
Separation and solitary confinement, used to maintain safety and security in prisons, can give rise to serious human rights concerns. Research has shown that these measures can have negative impacts on the physical and mental health of prisoners. An important development in prison standards has been the recognition that indefinite or prolonged solitary confinement constitutes inhuman or degrading treatment and, in extreme cases, may be classified as torture. It is important for policymakers and practitioners to note the recent changes to international standards on this topic, and to understand what constitutes ‘meaningful human contact’.
In 2015 the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) were revised. This revision process resulted in several important guidelines on solitary confinement.
Rule 44 defines solitary confinement as ‘the confinement of prisoners for 22 hours or more a day without meaningful human contact’. Prolonged solitary confinement was defined as lasting for more than 15 consecutive days.
Rule 43 warns that restrictions and disciplinary sanctions cannot amount to torture, cruel, inhuman or degrading treatment or punishment. The list explicitly includes prolonged and indefinite solitary confinement (Rule 43(1)(a),(b)).
Rule 45(1) makes it clear that solitary confinement can only be used
Further, solitary confinement must be authorised by a competent authority and be subject to independent review.
It cannot be imposed
The 2020 amendments to the European Prison Rules include important provisions on separation and solitary confinement.
Rule 53 dictates that all special safety and security measures, including separation, should “only be applied in exceptional circumstances and only for as long as security or safety cannot be maintained by less restrictive means”.
All prisoners who are separated from the general population (irrespective of what it is called in the national system) must be offered ‘at least two hours of meaningful human contact a day” (Rule 53A). Separation decisions must take into account the prisoner’s health and any disabilities that could increase their vulnerability to its adverse effects (Rule 53A(b)). The conditions in cells used during separation must meet minimum standards (Rule 53A(e)) and separated prisoners must be provided with reading materials and one hour of exercise per day (Rule 53A(g)). Separated prisoners must be visited daily by the prison director (or a delegated person) (Rule 53A(h)).
Importantly, the European Prison Rules note that “the longer a prisoner is separated from other prisoners, the more steps shall be taken to mitigate the negative effects of their separation by maximising their contact with others and by providing them with facilities and activities” (Rule 53A(f)).
ii) Solitary Confinement as a disciplinary punishment
Solitary confinement occurs when a prisoner is separated from other prisoners and receives less than two hours of meaningful contact per day. Given the documented long-term detrimental effects on health solitary confinement can have, it may only be imposed as a punishment. Importantly, solitary confinement can never be used on children, pregnant women, breastfeeding mothers or parents with infants in prison, (Rule 60(6)(a)) or persons with mental or physical disabilities when their condition would be exacerbated by it (Rule 60(6)(b)).
A further important restriction prohibits the imposition of back-to-back periods in solitary confinement. If a prisoner has already spent the maximum period in solitary confinement, a new disciplinary punishment of solitary confinement cannot be implemented before the prisoner had had a chance to recover from the ‘adverse effects of the previous period’ (Rule 60(6)(e)).
Despite reference to a maximum period, the European Prison Rules do not actually state what the maximum number of days that can be imposed as a disciplinary sanction is. However, Rule 60(6)(c)-(d) only permits solitary confinement as a disciplinary punishment
The European Prison Rules state that the maximum permissible period must be determined by national law. The Commentary to the rules however refers to the 15 day limit set by the Nelson Mandela Rules. It is interesting that the European Committee for the Prevention of Torture has consistently insisted upon a 14 day limit and the World Medical Association held in 2019 that solitary confinement should never exceed 15 consecutive days.
Both the UN and European standards refer to the need to ensure meaningful human contact but fail to define the concept. Expert reports (Essex Paper 3) and scholarship (Naylor and Shalev) refer to important aspects that can help prison services operationalise this requirement.
Meaningful human contact can be taken to refer to
In other words, contact should be facilitate sustained and genuine social interaction, that is not mediated or abrupt. The focus is not only on the quantity of interactions but also on their quality.
It is important that prison services develop procedures and training for staff to ensure this contact is provided (and recorded) to prevent separation becoming classified as solitary confinement.
Dirk van Zyl Smit ‘Separation and Solitary Confinement in the revised 2020 European Prison Rules’ Penal Reform International Blog Post, 10 July 2020
Bronwyn Naylor and Sharon Shalev, ‘Solitary Confinement and the Meaning of ‘Meaningful Human Contact’ in Clara Burbano Herrera and Yves Haeck, Human Rights Behind Bars: Tracing Vulnerability in Prison Populations Across Continents from a Multidisciplinary Perspective (2022) Springer 293-318
European Committee for the Prevention of Torture, ‘Solitary Confinement’ CPT/Inf (2011) 28-part2, Extract from the 21st General Report of the CPT (2011)