Amnesty International says that magistrates in Madagascar have failed to effectively play their role in limiting the length of pre-trial detention and preventing or ending arbitrary detentions. Courtesy: CC by 2.0/Jared Rodriguez / Truthout

By Samira Sadeque
UNITED NATIONS, Aug 28 2020 (IPS)

The recent killing of 22 prisoners in Madagascar during a prison escape on Sunday, Aug. 23 has brought the extraordinary situation of the country’s prisons under a spotlight. Human rights watchdog Amnesty International has condemned the killings, criticising the current judicial system that has led to Madagascar’s prisons holding more people awaiting trial than convicted criminals.

News sources have reported the death of 20 inmates in a shootout by police and the army during the prison break on Sunday, during which 88 prisoners attempted to escape Farafangana prison. Thirty seven were eventually captured, with the remaining 31 inmates still at large, according to the reports.

Tamara Leger, Amnesty International Madagascar programme advisor, told IPS that the current judicial process requires anyone, even those accused of a crime, to be put behind bars until trial.

This means, many of them “can be waiting for a trial for years, with little or no information on their cases,” she said. “This has led to the extraordinary situation where Madagascar’s prisons hold more people who have not been convicted than those found guilty.”

Amnesty International’s report on the issue claims that the escape was in protest of the “squalid” living conditions, prolonged pre-trial detention, or getting pre-trial for minor offences such as “theft of a toothbrush”, among other issues.

Mass prison breakouts are not uncommon in Madagascar, and human rights experts say the squalid living conditions in the prisons don’t make it easy on those being detained.

Leger said that 75 percent of the children who are currently being detained in prisons across Madagascar are in the pre-trial phase. She added that the authorities’ use of “unjustified, excessive and prolonged arbitrary pre-trial detention” leads to a range of human rights abuse: right to liberty, presumption of innocence, and to be treated with humanity and with respect for the inherent dignity of the human person.

Excerpt of the full interview below. Some parts have been edited for clarity purposes.

Inter Press Service (IPS): How does Madagascar’s criminal justice system affect its vulnerable communities?
Tamara Leger (TL): The majority of pre-trial detainees were men (89 percent), who are affected more directly by the lengthy and inhumane conditions of detention and the severe overcrowding. Even though women constitute about six percent of the prison population, and children make up five percent, they are disproportionately affected by some of the system’s consequences through gender-based and aged-based violations.

For example, pregnant women and women with babies do not have access to appropriate healthcare. Children often do not have access to any educational or vocational activities, in violation of Madagascar’s own laws.

The government has failed to prioritise much-needed support for the criminal justice system, which has resulted in poor allocation of human and material resources. Most prisons visited lacked basic resources, critical to the functioning of the prisons, including transport, furniture, sufficient food for detainees and even sheets of paper.

In addition to the severe lack of resources, the lack of training of staff, the poor coordination among the judiciary and the prison institutions, the slow pace of police investigation, and delayed judicial disposal of cases has meant that thousands of people continue to remain detained in prisons for months and years without a trial. Magistrates have failed to effectively play their role in limiting the length of pre-trial detention and preventing or ending arbitrary detentions. Instead, they have adopted a punitive approach — deliberately sending people to pre-trial detention, on a weak and twisted defence of “being seen to be doing justice”, and a conservative approach to using alternatives to detention.

It is mostly economically and otherwise disadvantaged people – the uneducated and underprivileged from rural areas – who are subjected to unjustified, excessive and lengthy pre-trial detentions. The majority of them spend long months or years in prison for non-violent, often petty offences like simple theft, fraud and forgery. With little knowledge or awareness of their rights and even less means to defend themselves, the poor and the marginalised are also the most likely to suffer the most from their detention.

IPS: How have prisoners been affected during the pandemic and what kind of services were provided to them?

TL: According to our research, the pandemic has made the conditions of detention, which were already extremely difficult, even more unbearable. Our sources on the ground report that detainees can no longer receive visits from their relatives and lawyers, which constituted for many their lifeline. Indeed, most detainees relied on their families to receive adequate food during their imprisonment, as the food provided by the prison administration is often extremely poor in quality and quantity.

In addition, detainees fear becoming infected with COVID-19. The overcrowding is such that it is very difficult for the government to implement the necessary measures to prevent the spread of coronavirus within the prisons. Pre-trial detainees and sentenced detainees are held all together in big, cramped rooms by lack of space (international law provides that these two categories must be separated), so it is hardly possible for detainees to practice social distancing. Furthermore, detainees fear that if they do fall sick, they will not have access to appropriate healthcare. 

IPS: The report also claims “We have warned the authorities time and again that the squalid detention conditions in Madagascar, compounded by overcrowding and a lack of resources, would lead to tragedy.” Were these conditions squalid even before the pandemic?

TL: Yes, absolutely. Amnesty International has documented the conditions of detention in our report published in 2018, which you can find here. Amnesty International’s visits to the nine prisons revealed the appalling conditions in which pre-trial detainees are held. Dark and with little ventilation, most cells are extremely overcrowded, posing serious risks to the detainees’ physical and mental well-being.

In 2017, 129 detainees died in Madagascar’s prisons, 52 of them pre-trial detainees. According to prison authorities, the main causes of death are respiratory problems, cardiovascular diseases, and what they describe as a general bad state [of health]. Prisons are dilapidated, ill-equipped, with lack of financial, material and general support. Prison staff complained about the lack of resources, ranging from sheets of paper, to computer equipment, furniture and transportation.

None of the prisons visited provide any separation between pre-trial and sentenced prisoners, as provided in international human rights law and standards, with three not even appropriately separating boys from men. The prison administration reported that only 24 out of 42 central prisons have a separate section for minors, and that more than a hundred minors were held with adults, in violation of international and national laws. Girls were not separated from adult women, and even in new prisons being built, the separation between girls and women is not being planned. Across all the prisons visited, researchers observed poor sanitation, absence of healthcare, lack of adequate food, educational or vocational opportunities and limited access to families.

IPS: It appears that prison breaks are not uncommon in the country. Has it always been met with this level of violence from the state?

TL: Unfortunately, prison breaks aren’t uncommon because of the lack of resources and overall, the lack of prioritisation of the prison system in the country. There is an acute shortage of key staff within the criminal justice system, ranging from the number of judiciary police officers, to magistrates, lawyers and prison staff. The budget allocated to the prison administration and the judiciary is insufficient to enable effective functioning of the criminal justice system. While this has been a particularly violent response from the state, security forces in Madagascar unfortunately often resort to excessive and disproportionate use of force, including lethal force, particularly in their fight against alleged ‘dahalos’ (cattle thieves).

Beggars are often rounded up by police and thrown into jail without charges being filed against them for years. This adds to the overcrowding in Indian prisons already reeling under a lack of basic facilities. Credit: Neeta Lal/IPS

By Neeta Lal
NEW DELHI, Aug 9 2016 (IPS)

A media frenzy ensued in New Delhi last month when a popular television channel highlighted the horrific living conditions of women inmates in ward number six of Tihar Jail, South Asia’s largest prison.

The program – “Fear and Loathing in Tihar” — beamed into people’s homes the prisoners’ abysmal treatment by the administration: 600 of them packed like sardines into space meant for half that number, a lack of basic amenities, and a shocking state apathy towards detainees in the world’s largest democracy."Some [women inmates] even have kids who have to stay with them in those pathetic conditions till they are six years old." --Delhi-based human rights lawyer Maninder Singh

By highlighting the prisoners’ misery, the program also helped shine a light on a broken judicial system where thousands are subjected to prolonged periods of incarceration without ever seeing a judge, or whose perfunctory court appearances stretch for years thanks to a corrupt legal system clogged with too many cases, and too few judges to try them. The injustice of lengthy detention is compounded by the horrific conditions of the jail facilities.

As the world celebrates Prisoners Justice Day on Aug. 10, human rights advocates say the state of Indian detention centres needs to come into focus again. Most Indian jails fail to meet the minimum United Nations standards for such facilities, including inadequate amounts of food, poor nutrition, and unsanitary conditions. Torture and other forms of ill-treatment are also common. The cells are also often dilapidated, with poor ventilation and absence of natural light.

According to a 2015 report of the Comptroller and Auditor General (CAG) of India on Tihar Jail, the prison complex is reeling under a prisoner population more than double its sanctioned strength and understaffed by 50 per cent of its required workforce. The key findings of the report suggest that the 10 jails in Tihar were grossly overcrowded with 14,209 prisoners against a capacity of 6,250.

Moreover, against government rules, 51 prisoners awaiting trial were found to have already served more than half the maximum term of punishment for the offences they were booked under, the report says.

Medical facilities, adds the damning report, are non-existent. There’s paucity of doctors, paramedical, ministerial, factory and Class IV staff by 18 to 63 per cent in the prison which despite an in-house 150-bed hospital and additional dispensaries in each of the 10 jails. The CAG found that “the hospital was not equipped to face any emergency situation”.

The subhuman conditions take a toll on human health — both mental and physical, a former inmate told IPS. “Women prisoners prefer to take care of each other when they are indisposed as there are only male doctors doing rounds most of the time,” she said. “I remember once a young woman had a miscarriage and bled for a few hours before she was taken to the hospital.”

In India, a country where U.N. figures indicate that 270 million people – or 21.9 percent of the population – live below the poverty line, justice for the poor is often delayed as well as denied. Credit: Neeta Lal/IPS

The fate of prisoners on death row is worse. Not only do they inhabit inhumane living conditions, they face unfair trials and horrific acts of police torture, according to a study by the Death Penalty Research Project at the National Law University in Delhi. The study, based on interviews with 373 of the 385 inmates believed to be on death row in India, offers a harrowing insight into the unbearable conditions the prisoners have to live in as they wait for judges to decide their fate.

The Commonwealth Human Rights Initiative (CHRI) report 2015 says that poor budget allocation, the way accused are arrested and non-issuance of bail along with miserable conditions in prisons were leading factors attributed to the existing living conditions of the inmates. It added that the situation calls for a trained administration to bring reformation in prisoners’ lives.

Legal eagles say the biggest bottleneck is the country’s overburdened criminal justice system which has a cascading effect on prisoners’ lives. Overcrowding is the most common. According to National Crime Records Bureau (NCRB) records, in 2013, the total number of prisoners was 411,992, of which a startling 278,503 were prisoners awaiting trial. Delay in providing justice, inadequate court infrastructure, and inaccessibility of a large number of prisoners to legal help make matters worse.

As per records, currently over three million cases are pending in various Indian courts across the country. Erstwhile PM Manmohan Singh remarked that India had the world’s largest backlog of court cases. Bloomberg Business Week estimates if that all the Indian judges attacked their backlog without breaks for eating and sleeping, and closed 100 cases every hour, it would take more than 35 years to catch up.

“The severe delay in delivering justice is largely due to the fact that many courts share judges with each other, resulting in extremely slow trial procedures. There’s no effective legal redress mechanism for under trials,” explains Ajay Verma, Senior Fellow, International Bridges to Justice, a non-profit that supports justice and human rights. “These institutional pathologies result in unjust and prolonged detention.”

Delhi-based human rights lawyer Maninder Singh says that many detainees are forced to be in jail longer than the maximum sentence for the offense with which they were charged, with some people spending as long as two decades in detention before being convicted or released by the courts.

Women awaiting trial in particular, adds Singh, are made to suffer as they are too poor to afford justice. “Some even have kids who have to stay with them in those pathetic conditions till they are six years old. Many under trials languish for months without even charges being framed against them. There’s simply no legal recourse available to them.”

After studying the living conditions of jail inmates across India, the National Human Rights Commission (NHRC) made some key recommendations for prison reform. These include replacing the 1894 Prison Act with a new one, amending prison manuals keeping human rights in mind, reducing overcrowding, one of the biggest problems in most prisons, shifting foreign nationals to detention centres from prisons after their sentence is completed, till they are deported to their respective countries.

Despite the gloom, experts suggest that it’s not as if the situation is irretrievable. What is needed is political will and a more humanitarian approach to a very complex problem. Already, some measures in Indian jails — like rehabilitation and skilling prisoners for their gainful employment post jail term — have come in for accolades. Tihar boasts of a full-fledged cottage industry where training for carpentry, baking, tailoring, fabric painting and other crafts are imparted to empower inmates. The revenues generated from selling products made by the prisoners helps in the prison’s upkeep. Wage earning and gratuity schemes and incentives help reduce the psychological burden on the convicts.

But as Singh and Verma point out, while these measures should be amplified, the State needs to urgently focus on faster disposal of court cases, speedier justice and better conditions in jail to make life more bearable for the inmates.

When Claudio was detained in a prison in the northeastern Italian city of Vicenza, he had to share a 7.6 square-metre cell with two other people. “Once you excluded the space taken up by beds and drawers, each inmate was left with 90 centimetres to himself. We had to take it in turns to stand up,” he told IPS.

But cramped living conditions were not the only problem. Forced into that room for 21 hours each day, “there was no possibility for (inmates) to engage in any activity”, Claudio added.

In a prison in Busto Arsizio, a city in the northern Italian region of Lombardy, “there was only one educator for 420 inmates, and the only psychologist could dedicate just six minutes of his time to each of them every year,” Claudio recalled.

In short, the real problem lay not in each individual case but in “the systematic violation of human rights” in prisons across Italy, he concluded.

Indeed, a recent decision by the Strasbourg-based European Court of Human Rights (ECHR) confirmed the level of dysfunction inherent in Italy’s prison system.

The Strasbourg Court’s January ruling declared that the crowded conditions seven inmates had been forced to endure in two Italian prisons constituted a violation of their basic rights.

As the official sentence reads, “Their conditions of detention had subjected them to hardship of an intensity exceeding the unavoidable level of suffering inherent in detention”, and violated the European Convention on Human Rights’ prohibition against torture and cruel, inhuman or degrading treatment or punishment.

The court also ordered the state to pay the applicants 100,000 euros (about 131,000 dollars) in damages.

Now, people like Claudio who feel their rights have been similarly violated, are queuing up at the ECHR.

“The aim is to denounce the general violation of people’s dignity: we were not allowed to touch our relatives’ hands during (visits), and there was no space dedicated to (visits) with children, who had to go through searches and a hostile environment,” Claudio added.

Ornella Favero, director of the non-profit organisation Ristretti Orizzonti (Narrow Horizons) who has been “denouncing the conditions in Italy’s prisons for years”, told IPS the ruling is just the tip of the iceberg.

With an occupancy rate ranging from 142 to 268 percent of maximum capacity, Italy holds the dubious distinction of having the most overcrowded prisons in the European Union, according to a report published by the Rome-based Prison Observatory of Antigone.

But the rate of overcrowding should not be used to justify “building new prisons, which is absolutely not what our country needs”, Favero stressed.

Quoting the Council of Europe, Alessio Scandurra, coordinator of the Prison Observatory, stressed that the “solution to overcrowding is not building new structures, because that is a system that creates its own demand: the more prisons you build, the more they will get filled”.

Following visits to prisons across Italy, the 2010 report by the European Committee for the Prevention of Torture (CPT) states, “(A)dditional accommodation is not likely, in itself, to provide a lasting solution to the problem of overcrowding. Addressing this problem calls for a coherent strategy, covering both admission to and release from prison, to ensure that imprisonment really is the measure of last resort.

“This implies, in the first place, an emphasis on non-custodial measures in the period before the imposition of a sentence and, in the second place, the adoption of measures that facilitate reintegration into free society of persons who have been deprived of their liberty.”

According to various studies, incarceration rates increased in Italy from 47,316 in 1992 to 67,961 in 2010.

Favero believes this is because “in the last decade, there has been no ability or (political) will to reform the Penal Code.”

According to the Prison Observatory of Antigone’s report, more than 20,000 people are serving terms of less than three years and approximately 25 percent of the inmates are drug addicts.

Italy has one of the highest percentages of drug-related crimes in the region: 38.4 percent of all prisoners compared to 14 percent in Germany and France and roughly 15 percent in England and Wales.

While the European average for pre-trial detainees is just 28.5 percent, in Italy they account for 42 percent of the prison population, Scandurra said.

The number of immigrants in Italian prisons is also well above the European average, comprising 35.6 percent of all prison inmates.

“All these people should have access to non-custodial sanctions,” Favero argued.

But in 2012 less than 20,000 people incarcerated in Italy were serving their sentence outside a prison, far less than the EU average: in 2009 Spain, Germany and France could boast 111,000, 120,000 and 123,000 people respectively taking advantage of alternatives such as pecuniary fines, community service and house arrest for lesser crimes, as well as medical treatment for drug addiction. In England and Wales the number was closer to 200,000.

“These are definitely the countries we should look at when it comes to non-custodial sanctions,” Scandurra said.

A robust body of evidence supports the civil society push towards alternatives to imprisonment. According to the Justice Ministry’s Observatory on Alternative Measures, non-custodial sanctions and gradual reintroduction into society show an 81 percent success rate, while 69 percent of those people who serve their entire sentence in prison tend to repeat their offenses.

“Keeping inmates in jail for longer does not make our society safer. But while this seems to be clear in many EU countries, in Italy the idea is that prison is the universal panacea,” Favero lamented.

Despite the grave outlook, Scandurra said the government has begun to pay more attention to the issue than it has in the past, and a consensus about what needs to be done is gradually developing among social workers.

“Elections are a delicate phase — bringing up these topics during a campaign is almost impossible, because it doesn’t get votes. But the hope, now that elections are over, is that politicians will finally have the courage to enforce the required measures,” Scandurra said.

Turning a slightly more cynical eye to the problem, Favero believes that what is more likely to promote a change is the threat of high monetary sanctions coming from Strasbourg. More than 500 similar cases are currently queuing up at the ECHR – if they result in a similar ruling to the one passed down in January, the government will be hard-pressed to cough up the necessary compensation, experts say.

(END)