FACTSHEET 3. Types and situations of risk 3.1. Regulation The need for regulation of instruments of restraint stems from the requirement that their use must be lawful. Clear regulations and policies should be put in place by central authorities on prohibited devices, the circumstances under which restraints may be applied, and clarifying the risks linked to their use. This is supported by the revised Standard Minimum Rules which stipulate that instruments of restraint should only be used when authorised by law.20 The UN Committee against Torture has also emphasised the need to ‘strictly regulate the use of physical restraints in prisons, (…) juvenile prisons and detention centres for foreigners with a view to further minimizing its use in all establishments’,21 and to ‘keep under constant review the use of instruments of restraint that may cause unnecessary pain and humiliation’.22 Given the lack of standardised definitions, the number of different devices and constant technological developments, any list of equipment should be illustrative rather than exclusive, and should be revised on a regular basis. Guidance should not be limited to the means of restraint but incorporate admissible and inadmissible purposes, as well as the aim of preventing inhuman or degrading treatment or punishment. Regulations should include a ‘formal accountability structure (…) in each institution and throughout the prison service’ since ‘[a]ll staff must be accountable for their conduct and decisions and in particular for the use of force and restraints (…)’.23 What could monitoring bodies check? • Is there a regulation, compliant with international standards, at the level of the central prison administration which determines which devices of restraint are admissible? • Is the regulation comprehensive and precise enough to effectively govern the use of restraints on persons deprived of their liberty? • Are the policies reviewed regularly? Who is in charge of initiating and undertaking such a review? Does it ensure that the most recent knowledge is taken into consideration, including on health risks associated with the use of certain restraints? • How is any revised regulation brought to the attention of prison administrations and staff, and who is in charge of notifying all relevant actors of an updated regulation? • Are staff held to account if found to be using restraints unnecessarily, disproportionately or in a painful or humiliating way? 3.2. Prohibited instruments Both the Special Rapporteur on Torture and the Committee against Torture have condemned methods of restraint that are inherently inhuman, degrading or painful, or have such effects.24 Rule 47 (1) of the revised Standard Minimum Rules explicitly prohibits the use of chains, irons, or other instruments of restraint that are inherently degrading or painful. This is mirrored in Rule 68 (1) of the European Prison Rules. Fabric leg restraints, appropriately tested and selected in line with human rights standards, could provide a more humane, yet effective, alternative to the use of ‘metal on skin’. On 10 December 2003 the Mozambique Human Rights League visited Maputo’s Maximum Security Prison to find five prisoners held in leg-irons, whilst a sixth prisoner was shackled with chains. The prisoners had spent four days and nights with their ankles shackled or chained together, causing them great pain by pressing into their flesh whenever the prisoners bent their knees. They had cut into the flesh of one prisoner who tried to relieve the pain by inserting cloth between the metal and the skin.25 • Does the regulation stipulate that other means must be exploited first? • Does its scope explicitly include the use of restraints during transfers of detainees? • Are the prison administration and staff aware of the regulation? It should be noted that, in the light of constantly changing technology, any list of prohibited instruments in national regulations should be illustrative rather than exclusive, and should have as its objective the prohibition of any device that is degrading, humiliating or painful. 20. Revised Standard Minimum Rules, Rule 47 (2). 21. Report of the UN Committee against Torture to the UN General Assembly – 47th/48th session, A/67/44, p47. 22. For example, UN Committee against Torture, Concluding Observations: New Zealand, 2009, CAT/C/NZL/CO/5, para. 9. 23. UN Office on Drugs and Crime (UNODC), Handbook for Prison Leaders, 2010, p40. 24. Report of the Committee against Torture – 23rd/24th session, A/55/44, para. 180 (c), reiterated by the Special Rapporteur on Torture in his report to the UN General Assembly, 9 August 2013, A/68/295, para. 58. 25. Community Law Centre, University of the Western Cape, Civil Society Prison Reform Initiative, Newsletter No. 20. Available at: http://www. omegaresearchfoundation.org/assets/downloads/publications/comm%20law%20centre.pdf <accessed 22 October 2013>. Penal Reform International | Instruments of restraint: Addressing risk factors to prevent torture and ill-treatment |3

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