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| The Relevancy of Solitary Confinement in the Current Criminal Justice System
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Mohammed Abdu Hassen and Ato Mitiku Mekonnen (Llb, Llm)
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Abstract:
Solitary Confinement is all about the practice or condition of imprisonment where by a person is placed in isolated small cell for average of twenty two up twenty four hours a day out of human contact, for whatever is reason and form may be and for whatever period of time. Solitary Confinement as one form of imprisonment is now in use by different countries prison system. Even some countries like United States have prisons which are solely constructed for Solitary confinement purpose. Currently the use of Solitary Confinement is increasing. Countries resort to it to achieve various purposes with the ultimate aim of maintaining legitimate public safety. There is unequivocal evidence that demonstrate the negative health, economic and social effects of Solitary Confinement. The extent of mental and physical damage of Solitary Confinement depends on the individual prisoner background, the reason of his isolation, its duration and the conditions of confinement. Concerning the legal regime and legality of Solitary Confinement, there are no international as well as regional human right instruments which absolutely and expressly make Solitary Confinement illegal. The binding international human right laws such as ICCPR, ICESCR, CAT and regional binding instruments such as ACHPR, ECHR and ACHR let alone prohibiting Solitary Confinement they does not use even a related terms to Solitary Confinement. Whereas the non-binding instrument and documents such as SMR, Basic Principle for Treatment of Prisoners, the Istanbul Statement, European Prison Rules (EPR) and the American Best and Basic Principles for Protection of Prisoners Deprived of their Liberty have used the term Solitary Confinement and any other similar terminology. Some of them call for the restriction of its use by resorting to it only as a last option. Thus, it is possible to conclude that in today's international and regional human rights system, Solitary Confinement is not clearly and absolutely prohibited and it remains un-prohibited. Domestic law of some countries like Ethiopia, U.K, Pakistan and Peru has incorporated Solitary Confinement as legitimate form of punishment or prison management and it can be used when it is found necessary. When we say Solitary Confinement is not prohibited by international and regional human right instrument it does not necessarily mean that such instrument have no relevancy in dealing with and regulating Solitary Confinement. All the provisions of such instruments related to, for instance, to right to health, dignity, due process, food, clean environment and right against torture, or other cruel, inhuman or degrading treatment or punishment play significant role in regulating Solitary Confinement regime and to bring a legal action against use of it in manner contrary to the above mentioned rights. Whether Solitary Confinement is relevant or not in the current criminal justice system is important question. It is important because the answer for the question will tell us either to stop or to continue using it. The international community and legislative organ of each country will take its own position and react accordingly. Based on the discussion made before on various grounds which are relevant for the determination of whether Solitary Confinement is relevant or otherwise in the current criminal justice system, my finding finally rests, as a rule in the negative. Though we have no binding human rights laws which prohibit Solitary confinement, it is irrelevant in today's criminal justice system. Countries shall take all appropriate measures to exhaust all other means of maintaining public safety in and outside prisons. So that prisoners human right can fully be realized, unnecessary costs can be eliminated, the inmates can better be rehabilitated and socially re-integrated, the public trust and confidence on the criminal justice system can be increased. And by avoiding abuse and over use of Solitary Confinement fair, efficient and effective criminal justice system can be built. However, there may be a rare case in which very crucial exceptional circumstances can be tolerated. This is when any other mechanisms or alternatives are already exhausted and nothing except Solitary Confinement can be the right solution. In this case, a modified form of Solitary Confinement can be relevant as last resort, for shorter time as possible (i.e. not more than days) and up on the fulfillment of certain conditions. I said 'a modified form' due to the new conditions attached to it. These conditions are the fact that the Confinement does not infringe the right of the inmates which are recognized and protected under the ICCPR, ICESCR and CAT. The detail of the situations which will constitute the crucial exceptional circumstances and the conditions that must be respected when Solitary Confinement is employed in the above mentioned exceptional circumstances is given in my recommendations.
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