Carlos Lusverti* and Carolina Villadiego Burbano**

Versión en español aquí.

On 13 March 2020, the Venezuelan authorities declared a state of emergency to preserve and protect the public health and for mitigate and eradicate the risk related to the COVID-19 pandemic. A mandatory lockdown and the suspension of non-essential activities was ordered. The negative impact on persons deprived of liberty was enormous. There was suspension of visits from family members and lawyers into detention centers. In addition, the Supreme Court of Justice on 15th March ordered the closure of courts in most matters, except urgent criminal matters. 

Overcrowding and limitation of visits: prisons and detention facilities reality in the midst of COVID-19 

With no public information or statistics about persons deprived of liberty in Venezuela, the data of Venezuelan civil society organizations, such as those of the Observatorio Venezolano de Prisiones (Venezuelan Prison’s Watch), stress that there is an estimated average of 171.83% overcrowding in prisons.

Additionally, there is a widespread practice of holding detainees in police facilities for prolonged periods under administrative detention while they are conducted to courts to attend their preliminary hearings, but also when they have already been brought before a judge who order their detention. According with Una Ventana a la Libertad (A Window to Freedom), a local NGO, in 2021 there were 110,000 inmates throughout the country and 65,000 of them were held in 500 preventive detention centers. 

This situation violates the right of all persons deprived of their liberty to be treated with dignity and their right to health. The situation involving the treatment of detainee’s breaches Venezuela’s human rights obligations under the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the UN Convention against Torture and the American Convention on Human Rights.  It also appears to violate numerous provisions of the universal minimum standards for the treatment of detainees set out in the “Mandela Rules”, adopted by the UN General Assembly in 2015.

The United Nations Anti-Torture mechanisms highlighted in 2020 “the particularly vulnerable situation of people in detention or confined in closed spaces, where social distancing is practically impossible. They especially raised the alarm about the pre-existing unfavorable medical conditions of detainees, which have contributed to a rapid spread of COVID-19, with potentially deadly consequences.”

Also, the United Nations Special Rapporteur on the independence of judges and lawyers, stated that “[p]rison overcrowding affects human rights in all circumstances, but it is particularly serious in the context of the pandemic, as it exponentially increases the risk of contagion among prisoners and prison staff.” That explains why the Special Rapporteur urged the “need to increase the use of alternative measures to deprivation of liberty during the crisis (…)”.

Despite the visit restrictions on prison centers, at least 135 persons deprived of liberty were affected by COVID-19 during 2020 according with data from Observatorio Venezolano de Prisiones.  The overcrowding and the lack of proper sanitary facilities inside prisons and detention centers allowed the contagion of COVID-19 in violation of the right to health. 

So, the excessive restrictions imposed to avoid receiving visits in prisons and detention facilities did not contain the spread of the virus and impaired the detainees’ rights to receive visits from families and lawyers. Also, considering that in many cases family members provide food to detainees and prisoners because the State does not comply with this basic duty, prisoners suffered much more during the pandemic.  

Finally, the closure of courts for seven months in 2020 and because since October 2020 the judiciary has not been working at its full capacity,  the right to access to justice for prisoners and detainees has been impaired, especially for those under excessive pretrial detention or that needed to go to court for several reasons, such as the review of their case or the possibility of having an alternative measure to prison.   

International obligations to guarantee the rights of persons deprived of liberty 

International human rights law remains in force at all times, including during the pandemic and the rights of persons deprived of liberty must be guaranteed. Prisoners and short-term detainees are entitled to access to legal counsel, doctors and medical professional, as well as access to courts at all times to challenge both the basis for their deprivation of liberty and their treatment in confinement. They must have access to food, potable water and sanitation and health services. Also, the State should adopt specific measures to avoid overcrowding. 

In line with its international legal obligations the Venezuelan authorities should adopt the following measures to guarantee immediately the rights of persons deprived of liberty: 

• Ensure full respect of international law governing the right to liberty, freedom from torture and other cruel, inhuman or degrading treatment or punishment, the right to human treatment and fully implement the Mandela Rules.
• Declare justice services as an essential activity, provide access to courts to persons deprived of liberty as a priority, and increase the budget to attend this type of case with maximum accountability and transparency.
• Ensure continuous access to detainees of family members and lawyers to detainees and prisoners, and provide biosecurity measures inside the prison system to prevent COVID-19 contagion. 
• Limit imprisonment to violent and serious crimes and adopt less restrictive measures than deprivation of liberty for minor and non-violent crimes. 
• Provide prison facilities with the necessary medical and hygienical supplies and with protective measures including access to vaccines to prevent COVID-19 and other diseases. 

*Latin American legal adviser consultant at the International Commission of Jurists 

** Latin American legal and policy adviser at the International Commission of Jurists 

Image: AP Photo/Matias Delacroix