and those detained are entitled to have their detention reviewed by a court of law. Authorities assessing
whether detention is arbitrary should consider issues such as inappropriateness, injustice, lack of predictability
and due process of law, as well as elements of reasonableness, necessity and proportionality. Those who are
arbitrarily detained should be immediately released as their detention under these circumstances might severely impact their right to life.
The risk of COVID-19 can be included in ongoing advocacies with authorities to ease conditions in places of
detention, including overcrowding, and comply with international standards with regard to treatment of detainees4, without discrimination, including those subject to stricter security measures. Based on existing legislation,
authorities could apply early and conditional release particularly for older persons, ill people, or others with
specific risks related to COVID-19.
COVID-19 can similarly be an opening for engagement with police, other law enforcement institutions as well
as the judiciary about risks and opportunities related to pre-trial detention. Limitation of persons in pre-trial
detention and implementation of non-custodial measures (see Tokyo Rules5) can be an effective measure that
reduces risks of spreading COVID-19, which is beneficial for both detainees and law enforcement staff. Discharge is the earliest possible non-custodial measure at the pre-trial stage. Other non-custodial measures,
such as conditional discharge, monetary fines, community service, probation and referral to attendance centres, may be applied at the sentencing stage. It should however be noted that cash bail systems may have
discriminatory impact depending on the concerned persons financial situation.
Health
Persons deprived of their liberty shall be receive a medical examination upon admission, and thereafter-medical care and treatment shall be provided whenever necessary.6 The purpose of health screening is to protect
the detainee’s health, detention centers staff as well as other detainees and to ensure that any illnesses are
dealt with as soon as possible to avoid the spread of the virus.7 All detainees should have access to medical
care and treatment without discrimination.8 Persons deprived of liberty who use drugs and receive harm reduction services should be allowed access to such services. Personal hygiene items such as soap and sanitizer
should be available at no cost.
In suspected or confirmed cases of COVID-19 all persons deprived of their liberty should be able to access
healthcare, including urgent, specialised health care, without undue delay. Detention centres’ administrations
should develop close links with community health services and other health-care providers.
If people are released, medical screening and measures should be taken to ensure that ill people are taken
care of and proper follow up, including health monitoring, is provided.
Particular attention should be given to specific health needs of older persons and other persons with underlying
health conditions, children who are in detention with their mothers, pregnant women and persons with disabilities. Health care services should be provided to gender specific needs at all times.
Housing
For those who may not have a residence upon release, the state should take measures to provide adequate
housing, which may require the implementation of extraordinary measures as appropriate in a state of emergency, including using vacant and abandoned units and available short-term rentals.
Information
Information on preventive health measures should be provided to persons deprived of their liberty; and efforts
should be made to improve the hygiene and the cleanliness of the detention places. Such measures should be
gender and age sensitive.
E.g. article 10 ICCPR provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of
the human person. The Human Rights Committee has stated that this expresses a norm of general international law not subject to derogation
(General Comment No.29, para 13(a)).Specific provisions apply to juvenile offenders, e.g. article 37(c) of the Convention on the Rights of the Child
and the SMRs.
5 https://www.ohchr.org/Documents/ProfessionalInterest/tokyorules.pdf
6 Principle 24 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
https://www.ohchr.org/EN/ProfessionalInterest/Pages/DetentionOrImprisonment.aspx. See also Rule 30 of the Nelson Mandela Rules. With regard
to suspicion of contagious diseases, Rule 30(d) states that they must provide for the clinical isolation and adequate treatment of the prisoner during
the infectious period.
7 OHCHR (2005). Human rights and prisons. Manual on Human Rights Training for Prison Officials. Page 63. Available in:
https://www.ohchr.org/Documents/Publications/training11en.pdf
8 Article 12.1. of the International Covenant on Economic, Social and Cultural Rights recognizes everyone’s right to health, including prisoners.
Principle 9 of the Basic Principles for the Treatment of Prisoners states that “prisoners shall have access to health services available in the country
without
discrimination
on
the
grounds
of
their
legal
situation”.
https://www.ohchr.org/EN/ProfessionalInterest/Pages/BasicPrinciplesTreatmentOfPrisoners.aspx . Rule 24 of the Nelson Mandela Rules states that
“prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care
services free of charge without discrimination on the grounds of their legal status”.
4
Inter-Agency Standing Committee (IASC) secretariat (Circulated on: 24 March 2020)
3