Christina Hitrova, 1200285, Cinema and Human Rights, Los Delegados

Universität Wien

Fakultät für Rechtswisswenschaften

WS 2012/13

Seminar: Cinema and Human Rights

VeranstalterInnen: Manfred Nowak und Anna Müller-Funk

Balancing Punishment and Rehabilitation –

What Can We Learn from Prisons in Bolivia

von

Christina Hitrova (1200285)

5. Semester Rechtswissenschaften (Erasmus Semester)

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Christina Hitrova, 1200285, Cinema and Human Rights, Los Delegados

Introduction

Neson Mandela wrote: “It is said that no one truly knows a nation until one has been inside the jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.”1 Indeed, although prisons were originally intended to be a form of punishment for all who have committed a certain crime, it is used more and more as a place to “store” our social dangerous outsiders. Because of the power of the state over individuals in such facilities, as well as the people, prisons tend to be places of multiple human rights violations.

The Meriam-Webster dictionary defines prison as “a state of confinement or captivity”. By its very definition, both legal and non-legal, prisons have the role of limiting the personal liberty of criminals against their will, thus limiting their right in accordance with Article 9 of the International Covenant on Civil and Political Rights (ICCPR) which allows for such limitations if they are established by law. Although the limitation of the liberty to move can be an obstacle to other rights, the states cannot deny such other rights to their prisoners2, something which is reaffirmed in the United Nations Standard Minimum Rules for the Treatment of Prisoners (1957) in Rule 57. Unfortunately, in many countries the reality of prisons is not simply limiting the movement of the criminals inside, but is also infringing either fully or partially on other human rights which should be guaranteed to prisoners as human beings.

The purpose of prison has been the centre of debate, which continues even today. Three different views of prison state that it is intended to punish criminals, to deter prisoners from committing further crimes or to rehabilitate criminals. The international community has taken the latter opinion3 and as such, states look upon their international obligation to rehabilitate prisoners differently. In the search for the best balance of punishment and rehabilitation, many countries have made wrong, right or accidental discoveries on how to change the vicious criminal circle of prisons and recidivism. Precisely what this balance should be is the question we need to answer when learning from Bolivia.

It is truly important to remember that prisoners are first and foremost human beings and only secondly, prisoners and as members of this larger community they are entitled to all the human rights, provided for some justified limitations. It has even been argued that states have the same positive human rights obligation to ensure human rights in prison, as much as they do in the larger community if not more, as they hold effective custody of prisoners, who are thus unable to provide for themselves.4 There are many international treaties which focus or include provisions of protection of prisoners’ rights in reply to widespread violations; however that has not had a great impact on the reality in the majority of the countries today, largely due to financial, economic and sometimes social circumstances. Ironically, the specific economic and social situation in Bolivia has led to some unusual prisoner rights being respected or threatened than in the majority of other countries and allows an interesting study in the interactions between prisoners and state.

1 Mandela, N. Long Walk to Freedom, [1994] London: Little Brown & Co.2 Kempen, P., Positive Obligations to Ensure the Human Rights of Prisoners, Safety, healthcare, conjugal visits and the possibility of founding a family under the ICCPR, the ECHR, the ACHR and the AfChHPR, available online at http://www.internationalpenalandpenitentiaryfoundation.org/Site/documents/Stavern/05_Stavern_Contribution%20Van%20Kempen.pdf, last accessed 6 January 2013, p. 23. 3 United Nations, International Covenant on Civil and Political Rights, 1966, Article 10.4 See supra note 2, p. 25.

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Bolivia is one of the poorest countries in South America, yet its prisons have among the lowest amount of prison violence on the continent. The prisons shown in the documentary “Los Delegados” are notable for their humanity, ironically caused by the poorness of the Bolivian government, but also for the human rights violations and threats in them. We have seen questions being raised during the movie of the human rights of the prisoners themselves, of the accused and detained awaiting trial, of the children of prisoners, as well as of the rights of the prison guards themselves. The movie shows a multi-layered human rights situation with many subjects and objects and one main source of the problem – the poorness of the Bolivian government. In this essay, the focus of observations will be mainly on the rights of prisoners, although it should be noted that the issue of detainees awaiting trial is a very serious problem in Bolivia as well.5 I will attempt to give an analysis of some of the applicable international human rights provisions and to compare how the situation in the prisons in Bolivia is, while trying to find what the rest of the world can learn from Bolivia with regard to its approach to prisons and prisoners.

International and regional rules

At the core of international prison rights legislation lays the very basis of human rights in general – human dignity. The International Covenant for Civil and Political Rights, the African Charter on Human and Peoples’ Rights, the American Charter for Human Rights all demand a humane and respectful treatment of prisoners and acceptance of their inherent human dignity. Their position as prisoners or detainees does not affect their humanity and their other human rights in any way.

International Covenant for Civil and Political Rights - ICCPR

Although prisoners’ rights have been a debated issue for a very long time, beginning with John Howard’s “The State of Prisons in England and Wales” in 1777,6 it has taken the international community a long time before it actually took steps to ensure the well-being of its prisoners though binding human rights instruments. Following the Second World War, all human rights experienced an incredible boost in their development and prisoners’ rights were no different. The entrance into force of the ICCPR was one of the first great steps for prisoner rights.

The basic right to liberty and security of person is laid down in Article 9 ICCPR. The main Article pertaining to prisoners is Article 10 of the ICCPR and declares that all persons deprived of their liberty should be treated with humanity and dignity and that convicted prisoners and detainees awaiting trial, as well as juvenile and adult prisoners should be separated. The article further requires that the focus of any detention should be the rehabilitation and reformation of criminals. It should be read in light of Article 7 ICCPR which prohibits torture and any inhuman treatment. This prohibition is deemed to be one of the few human rights international customary jus cogens7 norms and applies equally to all people in all situations in all countries in the world. Furthermore, as stated earlier, Article 10 ICCPR has a broad scope and in the case Daley v Jamaica it was established that the state had breached the said article for failing to protect a prisoner from regular attacks from other inmates.8 Although the ICCPR does not specifically

5 Andean Information Network, Prison Detainees in Bolivia: Bad Fruit of a Slow Judiciary System, [2012], available online at http://ain-bolivia.org/2012/08/prison-detainees-in-bolivia-bad-fruit-of-a-slow-judiciary-system/, last accessed 8 January 2013. 6 Howard, J., “The State of Prisons in England and Wales with Preliminary Observations and an Account on some Foreign Prisons”, [1777], Warrington, William Eyres. 7 Wet, E., The Prohibition of Torture as an International Norm of jus cogens and Its Implications for National and Customary Law, European Journal of International Law, [2004], Vol. 15, pp. 97-121. 8 Human Rights Committee, Communication, Silbert Daley v. Jamaica, [1998], ICCPR, /C/63/D/750.

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include a right to health care, it has been established through interpretations by the Human Rights Committee of the right to life and the prohibition on torture and inhuman treatment. It was held that ‘adequate’ or ‘appropriate and timely medical care’ must be afforded to prisoners and detainees.9

As human beings, prisoners benefit from the other provisions of the ICCPR as well, such as the respect for the family and private life in Article 17 ICCPR. Along with this, the family has been given special status and protected in different provisions in many international human right treaties, including Article 23 ICCPR. This has been used as an argument for conjugal visits, as well as closer contact with the children of the imprisoned.

The rules of the ICCPR are implemented through a few different ways. A special Human Rights Committee, elected by the states themselves, is established to monitor the implementation of the ICCPR and to enforce it in certain cases. According to the First Optional Protocol of the ICCPR, individuals have the possibility to lodge individual complaints to this Committee with regard to breaches to their human rights, following certain conditions such as the lack of parallel international proceedings and exhaustion of domestic remedies; however the Commission’s decisions are not legally binding. There is also a possibility of inter-state complaints in cases where states have submitted declarations accepting the power of the Commission in this respect (Article 41 ICCPR). A mandatory state reporting procedure is laid down in Article 40 ICCPR, which is to work at the request of the Committee. It is important to note here that with regard to civil and political rights, an excuse by a state for lack of sufficient funds is not accepted and the obligations under ICCPR persist despite it, following the wording of Article 2(1) ICCPR.

Some of the cases that have passed before the Human Rights Committee are especially interesting for us, due to their interpretation of certain human rights provisions in the context of imprisonment. In the case Daley v Jamaica, a prisoner who had been systematically attacked by other inmates persuaded the Committee that Jamaica had breached his right under Article 10 ICCPR by failing to protect him. The reasoning of the Committee was based on the vulnerability of prisoners and the responsibility of the state to take care of the ones it has detained or imprisoned.10 In the case Barbato v Uruguay the right to life was interpreted to include protection of the prisoner against suicide, forced suicide or murder by other inmates.11 It is easily seen that the interpretations of the Human Rights Committee may be very authoritative in determining the precise meaning of the rights in the ICCPR in practical cases.

International Covenant of Economic, Social and Cultural Rights - ICESCR

The ICESCR is another great international human rights treaty. Although not specifically mentioned in the text of the treaty itself, prisoners benefit from these rights because they are people. Some rights that could be seen as relevant to prisoners are the right to work, including the right to favorable working conditions, the protection to the family, the right to an adequate standard of living, the right to the highest attainable physical and mental health. To clarify its interpretations, the Committee on Economic, Social and Cultural Rights (CESCR), which is responsible for the implementation of this treaty, has released a number of general comments in which it has stated that the right to the highest attainable standard of health requires that states do

9 Human Rights Committee, Concluding Observations, Democratic People’s Republic of Korea, [2001], ICCPR, A/56/40; Human Rights Committee, Concluding Observations, Portugal, [2003], ICCPR, A/58/40; Human Rights Committee, Concluding Observations, Kenya, [2005], ICCPR, A/60/40.10 See supra note 8. 11 Human Rights Committee, Communication, Barbato v Uruguay, [1982], ICCPR, 84/1981.

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not deny access to health services to prisoners, among others,12 as well as that the right to work implies the restriction on states in denying or limiting the access to work for marginalized and vulnerable groups such as prisoners and detainees.13

The ICESCR imposes the much weaker obligation of progressive implementation on the states, meaning that they only need to make steps forward proportional to their capabilities. The monitoring and enforcement of the ICESCR is in the hands of the CESCR, after the Economic and Social Council of the UN delegated its tasks under this Covenant to it. A mandatory mechanism of state reporting is laid down in Article 16 ICESCR. Aside from that, the CESCR issues general comments to interpret the rights in the Covenant. A new Optional Protocol to the ICESCR which was adopted by the General Assembly in 200814 envisions a procedure of individual complaints submitted to the CESCR following certain conditions; however, the decisions of the CESCR are not to be binding on the state parties.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The Convention against Torture (CAT) is another piece of international law that, among other things, provides also for the rights of the detained or imprisoned. Along with prohibiting torture and inhuman treatment in all possible situations when it is committed by individuals whose actions are attributable to the state, in its Articles 10 and 11 it focuses specifically on prisons and prisoners as most vulnerable groups. Article 10 provides for the correct training and education of state officials who interact with detainees and prisoners, as well as the criminal prohibition of torture in the national rules of the state signatories, and Article 11 focuses on systematic monitoring and reviewing of the policies and techniques used in the country with regard to detainees and prisoners.

A special Committee against Torture is established by the Convention, which is in the centre of the mandatory state reporting procedure, as well as the optional inter-state and individual complaint procedures. Furthermore, the Committee has the power to begin its own investigation once there is reasonable evidence that there is a systematic practice of torture in a state party to the treaty, however this power of the Committee can be easily limited by states opting out of the procedure. Moreover, the power of the Committee to send independent experts on visits in state parties as a preventive measure can be exercised only with the agreement of the state concerned. Interestingly, the Member States of the Organization of American States (OAS) have accepted their own Convention to Prevent and Punish Torture, reaffirming the visible willingness of governments to change the vicious practice.

American Convention on Human Rights

The Organization of American States (OAS) is a regional international organization and has created the American Convention on Human Rights (ACHR). This Convention is in fact reaffirming some of the human rights already laid down in other international human rights instruments. The Convention was created in 1969 while the world was in the midst of the Cold War and agreeing on the ICCPR and the ICESCR was harder than ever. Regional agreements

12 Economic and Social Council, General Comment No. 14, The Right to the Highest Attainable Standard of Health, [2000], E/C.12/2000/4.13 Committee on Economic, Social and Cultural Rights, General Comment No. 18, The Right to Work, [2006], E/C.12/GC/18.14 General Assembly, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, [2008], Resolution A/RES/63/117.

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such as the ACHR were some of the first small steps made towards implementing human rights while this political battle was ongoing, thus the similarity between the different instruments.

With regard to prisoners, Article 5(2) ensures the right to a dignified and humane treatment to all persons deprived of their liberty. Until the rest of that article, it largely restates Article 10 of the ICCPR. Article 7 and 8 of the Convention provide, respectively, for the requirements for limitation of the right to personal liberty and some procedural safeguards as to avoid violations of this right, and the right to a fair trial, including hearing within a reasonable time and a presumption of innocence. Article 11 protects the right to a private and family life and Article 17, similarly to the ICCPR and the ICESCR, provides for special protection for the family and furthermore adds the right to marry and found a family.

The ACHR is enforced by the Inter-American Commission on Human Rights, which is now one of the main organs of the OAS. The ACHR provides for an optional inter-state complaints procedure, which, however, is not recognized by many states. The Commission can furthermore initiate studies on specific countries and then publish the resulting reports. State reporting monitoring was only introduced into the ACHR regime with an Optional Protocol in 1988. Perhaps its most effective power is to investigate individual complaints, filed by private persons, as well as NGOs. The Commission first decides on the admissibility of such a petition and when friendly settlements fail, it adopts a report in which it lays down its observations and recommendations on the case. After this report is sent to the state, it may or may not be published. Within three months, either the state concerned or the Commission may submit the case to the Inter-American Court of Human Rights (ACtHR), provided that the state has accepted its jurisdiction. The case is led between the Commission and the state and the individual has no standing before the Court, which gives individuals little control. Unfortunately, non-compliance, especially with the Commission report, does not have great consequences for the states.15

The case-law of the ACtHR, provides for authoritative interpretations of the rights laid down in the ACHR. With regard to prisoners’ rights, the Court has interpreted the right to life and the right to a human treatment to impose an obligation on states to “guarantee security and maintain public order, especially within prisons”.16 Having prisoners within its custody, the state is obliged to take reasonable and effective measures to guarantee the rights to life and to humane treatment within prisons.17 Furthermore, although a right to health care is not provided for per se in the ACHR, the Court has interpreted the right to life and the right to a humane treatment to imply such a right. Denying access to health care is seen as a breach in cases where detainees die or suffer extremely, depending on the disease of the prisoner, the specific personal circumstances, the time spent without medical help and the final effects.18

Other bodies that work in the field

Prisoner’s rights per se are not the specific interest of any powerful and well-known NGO. However, when it comes to human rights in general, NGOs are particularly active in the field by lobbying for different human rights and freedoms, as well as for monitoring. Most notable among these NGOs are Amnesty International and Human Rights Watch. The latest Bolivia report of the latter is a broad overview of different human rights issues in the country. Even

15 Nowak, M., Introduction to the International Human Rights Regime, [2003], Leiden, Martinus Nijhoff Publishers, p. 194. 16 ACtHR, Judgment, Miguel Castro‐Castro Prison v. Peru, [2006], para 240.17 See supra note 4, p. 29. 18 ACtHR, Judgment, Montero‐Aranguren et al (Detention Center of Catia) v. Venezuela, [2006], para 102‐103.

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though the report is only 5 pages long, the issue of trial delays in some criminal cases was raised, particularly in cases of political violence.19 In the report for 2011 again issues about the rights of a fair trial were raised.20 The annual Amnesty International report for 2007 on Bolivia21 pays more attention to prison conditions and the dangers for prisoners from other inmates and in 201022 concerns were raised about the independence of the justice system. For both NGOs, however, prison life conditions were not the main recurrent themes in their reports. It seems that even these NGOs tend to focus on other human rights issues. The living conditions in prisons have been largely neglected and are not in the centre of public attention.

Prisoners’ rights in Bolivia and the rest of the world

While it is very motivational to see how the international community and NGOs promote, protect or lobby for the human rights of prisoners, it is important to see what the situation in the world looks like today. Let us begin with an examination of the prison conditions in the two Bolivian prisons shown to us. Because of the function of the state in taking custody over all prisoners, it has the responsibility, according to the interpretations given to different rights in international instruments, to ensure, protect and respect the human rights of prisoners. Seeing as prisoners are unable to care for themselves, the state has both negative and positive obligations.

Beginning with some very basic living requirements, Bolivian jails have been found to lack in sufficient food, dignified living conditions, as well as access to health care, with medical offices completely lacking in some provincial prisons.23 Furthermore, prisoners being required to pay for their own cells can lead to further violations of the dignity of the person with prices often being out of reach.24

Two interconnected rights that we saw violated were the right to security of person, laid down in Article 9 ICCPR, and the right to life from Article 6 ICCPR. Although we saw an idyllic picture of the society of prisoners, all of them equal, in the discussions after the movie we heard that the prison system allowed for abuse of other prisoners. Perhaps due to poorness, illness or drug-addiction, the lack of government protection allowed for the possibility of exploitation of prisoners by other prisoners.25 Although it is a noble act to have specially elected prison delegates to help the police, it is a fact that there was a lack of sufficient protection for the weak, as there would be in the real society out of prison. This was seen as a human rights problem also by the Inter-American Commission on Human Rights (IACHR).26 Furthermore, the dangerous

19 Human Rights Watch, Bolivia, Country Summary, [2012], p. 2, available online at http://www.hrw.org/sites/default/files/related_material/bolivia_2012.pdf, last accessed 8 January 2013. 20 Human Rights Watch, Bolivia, Country Summary, [2011], p. 1, http://www.hrw.org/sites/default/files/related_material/bolivia_3.pdf, last accessed 8 January 2013. 21 Amnesty International, Bolivia Report, [2007], available online at http://www.amnesty.org/en/region/bolivia/report-2007, last accessed 8 January 2013. 22 Amnesty International, Bolivia Report, [2010], available online at http://www.amnesty.org/en/region/bolivia/report-2010, last accessed 8 January 2013. 23 Inter-American Commission on Human Rights, Follow-up Report – Access to Justice and Social Inclusion: The Road towards Strengthening Democracy in Bolivia, Chapter V: Prison Conditions and Rights of Persons Deprived of Liberty, para 122-125, available online at http://www.cidh.org/annualrep/2009eng/Chap.V.2.htm, last accessed 8 January 2013.24 Kane, M., In Bolivia, Inmates Buy Prison Cells for up to $10,000: Report, In Sight Crime, [2012] available online at http://www.insightcrime.org/news-briefs/in-bolivia-inmates-buy-prison-cells-for-up-to-$10000-report, last accessed 8 January 2013. 25 Estefania, R., Photo journal: Inside a Bolivian Jail, BBC Mondo, available online at http://news.bbc.co.uk/2/shared/spl/hi/picture_gallery/06/americas_inside_a_bolivian_jail/html/9.stm, last accessed 8 January 2013.26 See supra note 23, para 116.

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conditions in which the prisoners lived, namely the way they used electricity, is a real danger to the safety and lives of the prisoners and the statistics speak of serious hazards in Bolivian prisons when it comes to fires which endanger the lives of the people within them, this also being due to the overcrowding of prisons.

With regard to overcrowding, Bolivia has the incredible 233% of prison population compared to its capacities.27 Prison overcrowding threatens some of the basic rights of prisoners, such as the right to adequate standards of living and the right to the highest attainable standards of physical and mental health.28 Furthermore, it also leads to less time and possibility for rehabilitative work.29 Overcrowding has also been seen as degrading treatment by the European Court of Human Rights (ECtHR) in the Kalashnikov v Russia. Although this is not binding in the case of Bolivia, it shows a line of interpretation that may be taken by the ACtHR. The United Nations High Commissioner for Human Rights (UNHCHR), as well as the IACHR have further found overcrowding and inhuman treatment in prisons in Bolivia to be of special concern.30

Hygiene is another very serious issue to be addressed in these prisons. Prisoners in the movie spoke of the luxury that it is to have a shower. Due to the lack of funding from the government, prisoners need to pay themselves for many “luxuries”, among them showering and washing their clothes. These basics of hygiene for the people out of prison are not only necessary for keeping the dignity of prisoners, but also for preventing infectious diseases. Food and shelter are other basic minimums of life that the state, as guardian of the prisoners, is required to provide to them. As we saw, prisoners in Bolivia were required to buy or rent their own cells and were to provide for one meal a day by themselves. The state seems unwilling or unable to provide for even the basics of living standards.

Ironically, due to the poverty of the state, the particular prisons in the movie “Los Delegados” are characterized by its humanity and indeed, more freedom of prisoners with regard to their right to family life (Art. 17 ICCPR) and right to work (Art. 6 ICESCR), showing in yet another way how the old assumption that economic, social and cultural rights demand active involvement by the government. The right to work is extremely important for prisoners, as it has a disciplining and rehabilitation function both within and outside of prison. Here these rights flourish in the absence of governmental control. However, this happens at the expense of other human rights being violated, for example, right to adequate standard of living (Art. 11 ICESCR). Once a state has acquired custody over its citizens, it is its direct responsibility to make sure they have the necessary minimums for living.

Malnutrition, hygiene and safety, as mentioned earlier are especially dangerous for the children who we have seen live together with their parents in prison31. This is a risk to the lives and well-

27 Ramsey, G., El Salvador, Bolivia have Latin America’s most Overcrowded Prisons, In Sight Crime, [2012], available online at http://www.insightcrime.org/news-briefs/prisons-salvador-bolivia-overcrowded, last accessed 8 January 2013. 28Reform International, Prison Overcrowding, available online at http://www.pri.ge/eng/PrisonOvercrowding.php, last accessed 8 January 2013.29 Politics.co.uk, Prison Overcrowding, available online at http://www.politics.co.uk/reference/prison-overcrowding, last accessed 8 January 2013. 30 United Nations High Commissioner for Human Rights, Annual Report on the Activities of her Office in the Plurinational State of Bolivia, [2011], A/HRC/16/20/Add.2, p. 14, available online at http://www2.ohchr.org/english/bodies/hrcouncil/docs/16session/A.HRC.16.20.Add.2_en.pdf, last accessed 8 January 2013; also see supra note 23, para 108.31 Agenzia Fides, America/Bolivia - Malnutrition and lack of health care and hygiene for children who live with their parents in prison, [2012], available online at http://www.fides.org/aree/news/newsdet.php?idnews=32744&lan=eng, last accessed 8 January 2013.

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being of the children, who are not only protected in general by the rights laid down in the ICCPR, ICESCR, and the ACHR but are also protected as an especially vulnerable group by the Convention on the Rights of the Child (CRC). Article 3 CRC stresses particularly the importance of the safety and health conditions in institutions that work with children. Thus, functionally, the current system in Bolivia is violating the rights of the children to security of person and highest attainable health, including through the lack of sufficient funding for the food of the children. The UNHCHR has further established his concern for the safety of adolescent and school-age children growing up together with criminals. 32

On the other hand, however, the system in Bolivian prisons that allows for children to continue living with their parents respects the right to found a family laid down in the ACHR and is instrumental in the development of the family bond, as well as in the rehabilitation of the parent. By staying in touch with their family, prisoners have the possibility to more easily resocialize after their release from prison. Furthermore, children are only allowed to live with their parents until a certain age, while the time in prison often allows for parents to rethink their relationship with their child and often improves it.33 Keeping the best interest of the child in mind, as stated in Article 9 CRC, in a country such as Bolivia, perhaps the best interest of the child is indeed to stay close to its parent, albeit in prison, with prisoners stating“It is more secure in here than out there”.34 The system established in the prison is actually taking account of the education and social contacts of the children by letting them leave every day and join normal children in regular kindergartens and schools. Although this is not a unique phenomenon limited to Bolivia, I believe that there is something to be learned from the freedom and ease given to the parents and children, adding to the better atmosphere in the prison, not to mention the possibility of whole families living together, happening because of moral support or lack of other opportunities.35

The self-made democracy of the male prisoners in Bolivia is a very adaptive way to deal with the lack of state authority and the need for organization and unity within a society. It is something that other countries should definitely learn from. By giving prisoners the freedom to organize their day, to work and enjoy leisure activities, to connect with other prisoners and live in small societies, the prison is actually giving them the skills necessary to function outside of prison. This is extremely important for the rehabilitation and reintegration of prisoners who learn how to live together and work together in a society with their respective roles. It began only as a practice and was subsequently established and protected in law, and for these reasons it is both so effective in Bolivia, because it reflects the practice by the natives there, but it is also unsure whether it would be as effective elsewhere. Nevertheless, giving prisoners the opportunity to organize their day and lead an independent, but confined life, allows for them to return to the reality outside much easier. This, however, should not mean the absence of state interference to protect minorities and weak and vulnerable members of the prison society, something which happens in democracies out of prison.

When we look at treatment of prisons and prisoners globally, the situation is not reassuring either. Very few countries in the world have actually managed to create safe, well-functioning and rehabilitating prisons with normal standards of living, such as Norway or Denmark. For the

32 See supra note 30, p. 14.33 Collins, K., Healy, J., Dunn, H., When a parent goes to prison, The Prison Development Work of Barnardo’s Parenting Matters Project, p. 1, available online at http://www.barnardos.org.uk/pp_no_8_when_a_parent_goes_to_prison.pdf, last accessed 7 January 2013. 34 Skarbek, D., Self-Governance in San Pedro Prison, [2010], The Independent Review, Vol. 14, No. 4, p.577.35 Ibid.

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rest of the world, including the UK, the USA, China, Russia, prisons are overcrowded,36 not to mention that the strict rules that prisoners live by in some developed countries do not always play a positive role in them being to rehabilitate and resocialize after their sentence. Perhaps this is a consequence of the inherent belief that criminals go to prison and should be punished for what they have done; therefore, living conditions in prison do not tend to invoke as much sympathy from the wide public as other international campaigns for saving animal or plant life or fighting for freedom of speech. Although admittedly there are other human rights issues that may be more important at certain moments, prison conditions should be brought back to the attention of the public, as it is the first step of reintegration and rehabilitation of offenders and as such is one of the hardest and most important steps of subsequent crime-prevention.

The balance between punishment and rehabilitation is something very personal, however it is my opinion that more often than not prison conditions are not dictated by deep political or social values, but by lack of state funding. This is common in the majority of the countries world-wide. However, this case-study from Bolivia shows a new perspective on prisoners, being seen by their very guards as independent individuals, capable of rehabilitation and working towards it. With less funding than most other countries, Bolivia has managed to create an environment where prisoners were at least free to explore most of their rights as they would outside. Admittedly, there are many violations of human rights in the Bolivian prisons, nevertheless, the good aspects of the prison management should bring us something to learn from. The more developed countries should rethink the way they see prisoners and accept that they are equal human beings. Based on this, we can create more intricate solutions to the thousand-year-old problem of prison conditions.

Accountability of the state

If there are no national laws that were created to effectively transpose the mentioned human rights from the international instruments to a national level or if there are no similar human rights laid down in the Bolivian constitution, the only way to hold the state responsible would be through international enforcement possibilities. However, as we have seen earlier, there are hardly any meaningful international enforcement mechanisms when it comes to the individual. Although there are possibilities for individual complaints under the ICCPR and the ICESCR, they are both unbinding laid down in Optional Protocols. Bolivia would be simply required to consider in reasonable good faith the outcomes of the respective procedures, however low state budget is easily used by many countries as an excuse for not complying with all human rights.

With regard to the ACHR, the fact that the Commission and not the individual takes the case before the ACtHR causes a lot of the control to be out of the hands of the victims. The Commission refers cases to the Court only where states have not complied with the Commission’s own findings. Statistics have shown that states are not very inclined to comply with the Commission decisions if there are further possibilities to contest the case before the Court. When it comes to the compliance of states which have not accepted the jurisdiction of the

36 Nolan, S., Bursting at the seams: Uncompromising pictures from inside America's overcrowded prison system show the cramped lives lived by more than two million inmates, [2012], Daily Mail, available online at http://www.dailymail.co.uk/news/article-2223626/Prisons-America-breaking-point-million-citizens-bars.html; See supra note 29; Chellaney, B., China’s Newest Export: Convicts, [2010], The Guardian, available online at http://www.guardian.co.uk/commentisfree/libertycentral/2010/jul/29/china-export-convict-labour; Gramaticas, D., Russian Prisons “Full of Disease”, BBC News, available online at http://news.bbc.co.uk/2/hi/europe/3713858.stm, all last accessed 8 January 2013.

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Court, the results are even worse.37 It should be mentioned here that Bolivia has accepted the jurisdiction of the Court. The ACtHR has significantly improved in the last decade with regard to number of complaints received and percentage of them being found admissible38 and the statistics on compliance of states with decisions of the Court are much more encouraging.39 Furthermore, compliance with decisions of the Court are usually at least partial, with monetary compensation and public acts40 the most common steps to be achieved by states.41 In the case of Bolivia, however, although a specific case might be won, it is highly unlikely that this would have an impact on the total system of prisons in Bolivia. They are the fruit of social, cultural and economic factors in the country and would require years of work and a source of income to change completely. In general, the enforcement mechanisms most international human rights instruments, are very weak, depend on the cooperation and possibilities of the states concerned and assume that in certain situations bad public reputation would be enough motivation for a state reform.

Conclusion

Prison conditions are no doubt a problem in all countries in the world and through examining the actions and results in different situations, we can find a better way to manage our prisons, one which will be in conformity with the inherent human dignity that each and every one of us carries within them, but will also allow for the reintegration of criminals. A good prison should serve all the functions mentioned in the beginning – it should be a punishment, it should be a deterrent, but it should also be a changing force. By allowing more freedom for prisoners within the prison, by respecting them, their families and their lives, a cooperative society can emerge. However, keeping in mind that the people who will be living in this society are criminals, state interference is required at least to the level of it outside of prison. Protection for the weak, vulnerable is necessary in any democracy. Furthermore, state action is required to ensure the basic minimums of living such as food, shelter, clothing, health care. Although it requires financial investments, these basics are absolutely necessary for any safe and dignified life and are the sole responsibility of the state, which has limited the freedom of the prisoners and has thus made them unable to provide for themselves.

There are good and bad things that we have seen in the Bolivian prisons and we should not let the poor living conditions take away the wonder that is created there. A humane, close and even warm treatment of prisoners with full respect for their autonomy, family and work has lead to a less violent and more fertile environment for the development of the prisoners. Although more state protection and action is required, this movie should remind us that prisoners are our equals.

37 Camilleri, M. J., Krsticevic, V., Making International Law Stick: Reflections on Compliance with Judgments in the Inter-American Human Rights System, p. 237, available online at http://www.bristol.ac.uk/law/research/centres-themes/ihrsp/documents/vivianakrsticevicmichaeljcamilleripres.pdf, last accessed 8 January 2013.38 Inter-American Commission on Human Rights, Annual Report, [2010], available online at http://www.cidh.oas.org/annualrep/2010eng/TOC.htm, last accessed 8 January 2013. 39 See supra note 37, p. 238. 40 Cavallaro, J., Brewer, S. E., Reevaluating Regional Human Rights Litigation in the Twenty-First Century: The Case of the InterAmerican Court, Harvard Law School, Public Law and Legal Theory Working Paper Series, Paper No 09/31, p. 824, available online at http://www.escr-net.org/usr_doc/Cavallero_and_Brewer,_Reevaluating_HR_Litigation_in_21st_Century_in_the_IACHR.pdf, last accessed 8 January 2013. 41 See supra note 37, p. 241.

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BIBLIOGRAPHY

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Wet, E., The Prohibition of Torture as an International Norm of jus cogens and Its Implications for National and Customary Law, European Journal of International Law, [2004], Vol. 15, pp. 97-121.

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Chellaney, B., China’s Newest Export: Convicts, [2010], The Guardian, available online at http://www.guardian.co.uk/commentisfree/libertycentral/2010/jul/29/china-export-convict-labour;

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Nolan, S., Bursting at the seams: Uncompromising pictures from inside America's overcrowded prison system show the cramped lives lived by more than two million inmates, [2012], Daily Mail, available online at http://www.dailymail.co.uk/news/article-2223626/Prisons-America-breaking-point-million-citizens-bars.html;

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Ramsey, G., El Salvador, Bolivia have Latin America’s most Overcrowded Prisons, In Sight Crime, [2012], available online at http://www.insightcrime.org/news-briefs/prisons-salvador-bolivia-overcrowded, last accessed 8 January 2013.

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Agenzia Fides, America/Bolivia - Malnutrition and lack of health care and hygiene for children who live with their parents in prison, [2012], available online at http://www.fides.org/aree/news/newsdet.php?idnews=32744&lan=eng, last accessed 8 January 2013.

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