–3–
(e)
Non-discriminatory: not only must all relevant matters be taken into account in deciding to
impose solitary confinement, but care must also be taken to ensure that irrelevant matters are not
taken into account. Authorities should monitor the use of all forms of solitary confinement to ensure
that they are not used disproportionately, without an objective and reasonable justification, against a
particular prisoner or particular groups of prisoners.
Types of solitary confinement and their legitimacy
56.
There are four main situations in which solitary confinement is used. Each has its own
rationale and each should be viewed differently:
(a)
Solitary confinement as the result of a court decision
In most countries, courts have the power to order that a person remanded in custody (i.e.
placed in pre-trial detention) be held for a certain period in solitary confinement, in the interests of
the criminal investigation. Further, in a few countries, a period of solitary confinement is an
automatic part of some sentences established by legislation or can be ordered by a court as part of a
sentence.
In relation to solitary confinement ordered by a court as part of remand conditions, it is
axiomatic that there may be justification, in an individual case and based on sufficient evidence, for
keeping a given remand prisoner apart from other particular prisoners or, in even more exceptional
circumstances, prisoners in general, and in restricting his/her contact with the outside world. This
should only be done to guard against a real risk to the administration of justice and must be subject
to the safeguards outlined in paragraph 57 below.
The CPT considers that solitary confinement should never be imposed – or be imposable at
the discretion of the court concerned – as part of a sentence. The generally accepted principle that
offenders are sent to prison as a punishment, not to receive punishment, should be recalled in this
context. Imprisonment is a punishment in its own right and potentially dangerous aggravations of a
prison sentence as part of the punishment are not acceptable. It may be necessary for a sentenced
prisoner to be subject, for a certain period of time, to a solitary confinement regime; however, the
imposition of such a regime should lie with the prison authorities and not be made part of the
catalogue of criminal sanctions.
(b)
Solitary confinement as a disciplinary sanction
Withdrawal of a prisoner from contact with other prisoners may be imposed under the
normal disciplinary procedures specified by the law, as the most severe disciplinary punishment.
Recognising the inherent dangers of this sanction, countries specify a maximum period for which it
may be imposed. This can vary from as little as a few days to as much as a month or more. Some
countries allow prison directors to impose a given maximum period, with the possibility for a
judicial body to impose a longer period. Most countries – but not all – prohibit sequential sentences
of solitary confinement.
Given the potentially very damaging effects of solitary confinement, the CPT considers that
the principle of proportionality requires that it be used as a disciplinary punishment only in
exceptional cases and as a last resort, and for the shortest possible period of time. The trend in many
member States of the Council of Europe is towards lowering the maximum possible period of
solitary confinement as a punishment. The CPT considers that the maximum period should be no
higher than 14 days for a given offence, and preferably lower.3 Further, there should be a