Deprivation of liberty puts persons in situations of particular vulnerability to human rights abuses. At risk is also the right to family life. This situation of vulnerability is exacerbated in the context of the COVID-19 pandemic and related contact restricting measures taken by States to prevent the spread of the virus in places of detention.
Under international law, although deprivation of liberty inevitably entails some limitations on the private and family life of detainees, any interference with these rights must be justified. This means that it must be provided by law and necessary in a democratic society. At the same time, according to the UN Special Rapporteur on Torture, the denial of family visits to people in detention may, under certain circumstances, in itself constitute cruel, inhuman or degrading treatment. Therefore, as the Association for the Prevention of Torture summarises the issue, while some restrictions to detention regimes can be justified, detaining authorities must still uphold the rights and protect the dignity of those deprived of liberty.
The current pandemic has made it necessary for the authorities to restrict the detainees’ contact with the outside world to protect their health. However, crucial questions remain, especially considering the key importance of the right to maintain contact with their families not only for the detainee’s well-being and quality of life in detention but also for the detainee’s rehabilitation.
What types of restrictions are proportionate in individual cases, especially in the case of individuals with psychosocial or intellectual disabilities who may be particularly dependent on familial support? What measures should the authorities adopt to cope with and mitigate the effect of these restrictions to still respect their international obligations vis-à-vis the right of family life?
But it does not end there. The right to family life is not only a detainees’ right. It is also their family members who have the right to maintain contact. Violations of the right to family life are thus always multiple rights abuses that spread the anguish inflicted on the individual to friends and family.
These questions and considerations are at the core of our current project.
Giving a voice to the relatives
To understand the complex situation of persons in preventive measure during COVID-19, the project seeks to enable the early involvement of the different actors crucial to the lives of persons deprived of liberty with psychosocial disabilities. This blog post entry presents the testimony of a relative who shared his perspectives and experiences with us…
After a family crime, our son was taken into pre-trial detention in August 2019. Only 50 days after his arrest, the first family member - the 88-year-old grandmother – was allowed to visit our son in the jail. The remaining family members made two personal visits every week, whenever possible.
There were regular discussions with the lawyer and, from December 2019, also with a privately organized, competent therapist until the main trial on March 12, 2020. The time until then was characterized by poor health and psychological general condition of our son and by monitoring the 30-minute conversations, through the public prosecution department. Conversations with personal content were therefore not possible. Content that could have been linked to the crime was treated restrictively. There was a constant threat of breaking off the visit.
At the time of the scheduled main trial, it was already clear that from the following week no personal visits due to the COVID-19 pandemic would be possible.
For this reason, too, the court and the jury seem to have reached a verdict on March 12 within a short time. Our son was sentenced to a long imprisonment term with forensic commitment.
Just a few days after the judgment of the first instance, further visits were prohibited from March 16, 2020, due to the imposed COVID-19 rules. From March 28th, our son could call the family for the first time, precisely because of the COVID-19 situation. The phone calls, which are limited to 15 minutes each day, are paid by the inmate himself.
During the first COVID-19 period, only the lawyer could visit our son. After March 13th, the family was given an appointment with just one person again on May 22nd. The announced video call via the Internet did not take place. We do not know whether this was not done for technical reasons or because of monitoring the discussions.
In addition, due to COVID-19, necessary, and already planned examinations for our son’s health problems were postponed.
It was not until April 29 that our son was transferred to a hospital with surveillance for medical clarifications, where he stayed until May 20. When he returned to the prison after this stay, he had to go into a two-week quarantine, even though he had a negative COVID-19 medical report. Prison officers did the weekly shopping for him.
From May 22, 2020, visits to the prison were allowed again in compliance with the prescribed COVID-19 hygiene measures. The fact that this was still done for family members over an installed phone through a plexiglass pane can be explained by the extraordinary situation. However, the fact that more than 14 months of visits took place exclusively across barriers is a challenge for all family members involved.
The overall situation of our imprisoned son has not changed after the appeal trial on August 5, 2020. Our child had and still has psychological problems, and the COVID-19 situation resulted in further isolation from the family and interruptions in the necessary therapeutic support. For some time now, hopelessness, resignation, and loneliness have been spreading. It is to be feared, that under these very long-lasting conditions there is an additional higher vulnerability.
It is obvious that the COVID-19 situation will also determine our lives for the next few months. We hope that our detained child will not suffer from supplementary permanent damage in addition to the existing problems. He will hopefully be able to lead a self-determined life after imprisonment.
Author: Relative of a detainee from Austria
(anonymized: source is known to the Institute),
Disclaimer: This blog post was written by a relative of a detainee with psychosocial and intellectual disabilities. The content of this blog post represents the author’s individual experience and perspective. It is therefore the sole responsibility of the author and is not reflecting the overall findings of the project.