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26 March 2020

Skopje

RECOMMENDATIONS FOR TREATMENT OF PERSONS DEPRIVED OF LIBERTY IN CONDITIONS OF PANDEMIA OF COVID-19

Pursuant to Article 31 of the Law on the Ombudsman (“Official Gazette of the Republic of Macedonia” No. 60/2003, 114/2009, 181/2016, 189/2016 and 35/2018) “The Ombudsman pays special attention to the protection of constitutional and legal rights of persons deprived of their liberty. "

Pursuant to Article 31-a of the Law on the Ombudsman, “The Ombudsman - National Preventive Mechanism in the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has the power to regularly investigate the treatment of persons deprived of their liberty, make recommendations to the relevant authorities with a view to improving the treatment and conditions in places of detention, as well as to propose amendments to the law. "

Deprivation of liberty means any form of detention on remand, or the detention of persons in public or private facilities in which the person is not permitted to leave voluntarily, at the behest of a judicial, administrative or other authority (police stations, penitentiaries). and correctional facilities, centers for the accommodation and detention of migrants, refugees and asylum seekers, psychiatric hospitals, social institutions, various newly established places, ie centers and facilities for the so-called quarantine and other places).

Bearing in mind the current situation and the state of emergency in order to protect and deal with the consequences of the Covid-19 virus, the Ombudsman – National Preventive Mechanism is aware of the specificity and intensity of the challenges faced by staff in places of deprivation of liberty. Its mandate and responsibilities, in particular, and reminds that:

The prohibition of torture and other cruel, inhuman or degrading treatment or punishment is absolute, and no derogation from such prohibition can be justified under any grounds, even in cases of emergency, military or any other state of political instability

.
Namely, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment is an imperative provision that has a special status in international human rights protection, contained in a number of international and regional treaties that are part of international customary law binding on all States.

This nature of the ban also imposes a positive obligation on the State to take appropriate measures to prevent the occurrence of any acts of torture and other cruel, inhuman or degrading treatment or punishment.

In this regard, the Ombudsman - National Preventive Mechanism emphasizes that measures and activities taken to protect and deal with the consequences of the Covid-19 virus pandemic must not result in any inhuman or degrading treatment of persons deprived of their liberty and authorities in dealing with these persons have to regard to the principles of the European Committee for the Prevention of Torture:

          1) The basic principle must be to take all possible action to protect the health and safety of all persons deprived of their liberty. Taking such action also contributes to preserving the health and safety of staff.
          2) WHO guidelines on fighting the pandemic as well as national health and clinical guidelines consistent with international standards must be respected and implemented fully in all places of deprivation of liberty.
          3) Staff availability should be reinforced, and staff should receive all professional support, health and safety protection as well as training necessary in order to be able to continue to fulfil their tasks in places of deprivation of liberty.
          4) Any restrictive measure taken vis-à-vis persons deprived of their liberty to prevent the spread of COVID-19 should have a legal basis and be necessary, proportionate, respectful of human dignity and restricted in time. Persons deprived of their liberty should receive comprehensive information, in a language they understand, about any such measures.
          5) As close personal contact encourages the spread of the virus, concerted efforts should be made by all relevant authorities to resort to alternatives to deprivation of liberty. Such an approach is imperative, in particular, in situations of overcrowding. Further, authorities should make greater use of alternatives to pre-trial detention, commutation of sentences, early release and probation; reassess the need to continue involuntary placement of psychiatric patients; discharge or release to community care, wherever appropriate, residents of social care homes; and refrain, to the maximum extent possible, from detaining migrants.
          6) As regards the provision of health care, special attention will be required to the specific needs of detained persons with particular regard to vulnerable groups and/or at-risk groups, such as older persons and persons with pre-existing medical conditions. This includes, inter alia, screening for COVID-19 and pathways to intensive care as required. Further, detained persons should receive additional psychological support from staff at this time.
          7) While it is legitimate and reasonable to suspend nonessential activities, the fundamental rights of detained persons during the pandemic must be fully respected. This includes in particular the right to maintain adequate personal hygiene (including access to hot water and soap) and the right of daily access to the open air (of at least one hour). Further, any restrictions on contact with the outside world, including visits, should be compensated for by increased access to alternative means of communication (such as telephone or Voice-over Internet-Protocol communication).
          8) In cases of isolation or placement in quarantine of a detained person who is infected or is suspected of being infected by the SARS-CoV-2 virus, the person concerned should be provided with meaningful human contact every day.
          9) Fundamental safeguards against the ill-treatment of persons in the custody of law enforcement officials (access to a lawyer, access to a doctor, notification of custody) must be fully respected in all circumstances and at all times. Precautionary measures (such as requiring persons with symptoms to wear protective masks) may be appropriate in some circumstances.
        10) Monitoring by independent bodies, including National Preventive Mechanisms (NPMs) and the CPT, remains an essential safeguard against ill-treatment. States should continue to guarantee access for monitoring bodies to all places of detention, including places where persons are kept in quarantine. All monitoring bodies should however take every precaution to observe the ‘do no harm’ principle, in particular when dealing with older persons and persons with pre-existing medical conditions.


                                                             Ombudsman-National Preventive Mechanism



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