COVID-19 has fundamentally changed the dynamics of criminal justice and prison systems around the globe. Eight months after the pandemic was declared, we have reviewed the impact of different measures to address COVID-19 in Latin America.
Virtual judicial hearings: a risk to torture prevention efforts
COVID-19 has been a catalyst for many States to review and update aspects of their justice system. This includes a greater use of technology across all parts of their work, including the implementation of virtual judicial hearings.
However, virtual judicial hearings can pose serious risks for access to justice and the prevention of torture, especially during the early stages of detention. For example, using technology for custody hearings in Brazil or detention control in Mexico, means that people are not physically presented before a judge, which limits the guarantee of the principle of immediacy. It also undermines article 7.1. of the American Convention on Human Rights, which sets out that:
"Any person arrested or detained must be brought promptly before a judge or other officer authorized by law (...)".
We know the risk of torture and ill-treatment is higher during in the first hours of detention – and the statistics do not lie. The Public Defender's Office in Rio de Janeiro, between January and September of 2019, reported that of the 23, 492 detainees who were interviewed by them, 38.3% allege that they had suffered violence during detention. And in Mexico, the National Survey on Populations Deprived of Freedom (ENPOL) recorded that 63% of people deprived of liberty experienced some kind of physical violence during arrest.
In these risky moments, the use of virtual judicial hearings makes it impossible for judges to directly observe the physical and psychological conditions of detainees. Therefore, instead of benefiting detained persons and the criminal justice system as a whole, the virtual nature of these cases is contrary to the legal nature of the custody and control hearings, which is to verify the legality of detention, detect possible cases of torture, and protect the rights of the detained persons, circumstances that cannot be verified through a camera.
In and out: a new revolving door for prison populations
To limit the spread of COVID-19, States have sought to reduce their prison population by passing amnesty laws or granting pardons on humanitarian grounds. For example:
- In Brazil, the National Council of Justice issued Recommendation No. 62, calling on judges to reconsider the need for pre-trial detention and to grant early release or home detention to persons belonging to at-risk groups. More than 33,000 people deprived of their liberty benefited from this Recommendation.
- In Bolivia, a Presidential Decree on Amnesty and Pardon was issued to respond to COVID-19.
- In Chile, Law 21 228 was passed to grant a general pardon during COVID-19.
- In Ecuador, commutative pardons were granted to persons deprived of their liberty.
- In Mexico, the passage of the Amnesty Law was expedited.
- In Panama, the President granted reductions in penalties as humanitarian aid.
There is, however, a flipside to these efforts to contain COVID-19. In a number of countries, legislative changes have been made to criminalise behaviour that contributes to community transmission of the virus. For example:
- In Chile, penalties were increased for those who endanger public health and a new offence was established for violation of health authority orders, with penalties of up to five years in prison.
- In Uruguay, a Bill is being discussed to penalise those who violate health provisions.
The result is a new revolving door. On the one hand, some are released from prison by measures established or adopted in the context of the pandemic but, on the other hand, others enter the criminal justice system for violating health laws and/or administrative provisions. As proof, in Paraguay, it was reported that as of April 2020, 2,579 persons had been prosecuted for violating health regulations.
In addition, in the midst of states of emergency declared in some countries, the risks of torture and ill-treatment have increased, as a result of repression and isolation in prisons, and discretionary powers given to police in particular to detain people for not wearing masks, situations that have led to police violence and even the death or disappearance of persons arrested for these reasons, among other circumstances.
Cutting off contact with the outside world
Within custodial settings, one of the most frequent measures imposed by governments to prevent the spread of COVID-19 has been to suspend visits, in many cases without considering alternative measures that connect people with the outside world, such as the use of video calls, mobile phones, sending letters and other means of communication. This can have a profound impact on people in detention, by limiting human contact, straining their relationships and promoting misinformation. In some contexts, suspending visits can also mean that detained persons are denied food, clothing and other commodities provided by families and friends.
Eight months after the start of the pandemic, visits are only now beginning to resume. In some states in Mexico, visits have resumed on a staggered basis, every 15 days. In Ecuador, a Regulation for the Progressive Return of Visits was issued. On the other hand, the reestablishment of visits is also deriving from the protests of families and persons deprived of their liberty who demand to maintain contact with the outside world, as in Argentina and Brazil.
In some countries protests for resuming visits have resulted in repressive measures against persons deprived of liberty, which is contrary to their rights to life, personal integrity and due process. These situations should not be allowed to occur during the time in prison as the main right that is limited is freedom of movement, not dignity, nor the maintenance of emotional ties and contact with the outside world.
Prevention: more necessary than ever
Despite the serious risks posed by the pandemic, National and Local Mechanisms for the Prevention of Torture (NPMs, LPMs) have continued their preventive work. Some have adapted their methodology to conduct remote monitoring of places of detention, while others have undertaken visits with appropriate health precautions.
In all cases, they have made recommendations and advocated for changes in detention policies and practices. For example, the Peruvian NPM implemented in its preventive activities the recommendations issued by the UN Subcommittee on Prevention of Torture on COVID-19 and shared these with relevant government institutions. Some NPMs – such as in Paraguay – have conducted monitoring visits of mandatory quarantine centres set up in response to the pandemic. Given the increased risks of torture and ill-treatment at this time, the work of NPMs and MLPs is more necessary than ever.
Despite grappling with the pandemic for the past nine months, we continue to face an overwhelming and ever-changing scenario, especially as it relates to persons deprived of liberty. However, the data and experiences we have reviewed reveals three important facts:
- Measures adopted by States must be developed and implemented on the basis of legality, necessity, proportionality and temporality;
- The rights and safety of people engaging with the justice system, people deprived of liberty and their families, and those working in places of detention must be fully considered in the context of COVID-19;
- As new risks arise during the pandemic, efforts to prevent torture are more necessary than ever; and we must continue to reinforce that torture and ill-treatment are absolutely prohibited, even in times of emergency.
