C Explanatory memorandum by Mr Pierre-Alain
Fridez, rapporteur for opinion
1. I congratulate Mr Manuel Tornare
on his report, which displays a balanced, sympathetic approach to
a delicate and complicated issue. As in the case of members of other
vulnerable groups, the situation of disabled persons in detention
requires careful, differentiated consideration; indeed, this differentiation
must extend also to individual disabled detainees, depending on
the nature and severity of their disability.
3. In particular, I would recall the concern expressed by the
Assembly in
Resolution
2082 (2015) that the prison health-care system does not always provide
for timely access to vital medical treatment, particularly for critically
ill detainees. This concern may equally apply to disabled detainees.
Resolution 2082
(2015) mentions factors including practical barriers,
such as the unavailability of trained medical staff, the lack of
prompt and efficient communication between prison staff and medical
staff, the failure to transfer detainees to a public hospital, and
the disproportionate physical restraint of detainees, all of which
create obstacles to a detainee’s ability to obtain adequate medical
care, and all of which may be problematic also in the present context.
I am reassured to see that this analysis is reflected in paragraph
5 of the draft resolution.
4. I would also recall the Assembly’s concern, expressed in
Resolution 2020 (2014), that detention, even for very short periods of time
and in relatively humane conditions, has severe negative short-
and long-term effects on children’s physical and mental health and
its observation that children in immigration detention are particularly
vulnerable to the negative effects of detention and can be severely
traumatised. Insofar as disabled detainees may also be particularly
vulnerable, such considerations may also be relevant to them, depending on
the nature and degree of their disability; although of course, the
situation of disabled persons cannot be likened to that of children.
5. Paragraph 7.5 of the draft resolution raises the issue of
adjusted sentences and alternatives to custodial sentences. In this
respect, I would recall the basic requirements for the application
of non-custodial sentences set out in
Resolution 1938 (2013), the following of which are of particular relevant in
the present context:
- the prohibition
of discrimination in the application of non-custodial measures,
which, in accordance with the case law of the European Court of
Human Rights, also requires differential treatment of different groups
where justified by relative differences in relevant characteristics;
- respect for the principle of proportionality between the
seriousness of the offence and the intensity of the punitive character
and the interference of the measure applied with the rights of the
offender, where the relative intensity of the punitive effect and
the interference with the offender’s rights may be greater in the
case of a disabled detainee;
- respect for an offender’s rights to privacy and human
dignity, which may be subject to more serious interference in the
case of disabled detainees;
- the protection from undue risk of physical or mental injury,
which may be greater in the case of disabled detainees.
6. In addition, there are certain details of the draft resolution
that could be strengthened by further clarification or differentiation
of relevant terminology. (Further explanation of my proposals to
this end appears below in connection with the relevant amendments.)
7. On the basis of the foregoing, I would propose four amendments
to the draft resolution intended to reinforce certain aspects thereof.
1 Amendment A (to
the draft resolution)
Explanatory note
This amendment seeks to clarify that the problems mentioned
in the first sentence of paragraph 2 of the draft resolution, especially
those relating to mobility issues, are relevant to detainees with
physical disabilities in particular.
2 Amendment B (to
the draft resolution)
Explanatory note
This amendment seeks to clarify the consequences that may
be suffered by detainees with psychosocial disabilities should appropriate
care not be available.
3 Amendment C (to
the draft resolution)
Explanatory note
This amendment seeks to encourage the relevant national authorities
systematically to take account of the individual situation of disabled
persons, namely their specific vulnerabilities and needs, when taking
decisions on detention whether at the pretrial or sentencing stage,
as well as for the purposes of compassionate release.
4 Amendment D (to
the draft resolution)
Explanatory note
This amendment is self-explanatory; it is a consequence of
the need to ensure appropriate care and respect for the detainee’s
human dignity and safety, as well as the safety of others in certain
cases.
