Defensoria Publica and Ministerio Publico in Rio de Janeiro vs. State of Rio de Janeiro
The Right to Health in Prison during the COVID-19 Pandemic
The need to take necessary measures to protect the life and health of incarcerated persons against the risk posed by COVID-19 has taken on worldwide urgency. Systemic problems endemic to penitentiary systems across multiple jurisdictions—such as overcrowding, inadequate health services, and poor living and sanitary conditions, including poor cell ventilation—are exacerbated by the COVID-19 pandemic, endangering the lives of detained individuals, prison staff and the surrounding community. Compared to the wider population, those in incarceration are particularly vulnerable and at higher risk of contracting the virus, which can spread rapidly in detention due to the high concentration of persons in confined spaces.
While the first urgency remains to reduce the number of incarcerated persons to avoid overcrowding, States also have a responsibility to take appropriate, immediate measures to protect the lives and health of those in prison. This case argues that under international human rights law, a State has a heightened duty to protect the health of those it detains. Using law and public health policy, this legal action aims to mitigate the effects of the pandemic in the prison system, in this instance Brazil, which has the third largest prison population in the world. It also emphasizes the critical role the judiciary can play to protect those under its jurisdiction from imminent and irreparable harm that can arise from contracting COVID-19.
On April 29, 2020, the Public Defender (Defensoria Publica do Estado do Rio de Janeiro) and the Public Prosecutor’s Office (Ministerio Publico do Estado do Rio de Janeiro) of Rio de Janeiro, filed a collective action (Ação Civil Pública) against the State of Rio de Janeiro, the Municipality of Rio de Janeiro, and the Associacao Filantropica Nova Esperanca, an organization managing a penitentiary health care unit. The collective action argues for rapid intervention regarding the deteriorating situation in Rio’s prisons due to the COVID-19 outbreak. It takes into account recommendations and resolutions issued by multiple public bodies regarding measures to prevent the spread of the virus in the prison system, most of which have not been applied.
Brazilian authorities have confirmed that COVID-19 has entered Rio’s prison system. Medical evidence and examples from other countries demonstrate that once COVID-19 infections appear in a prison, the virus is likely to spread rapidly in the facility as well as within the surrounding community. Overcrowding, lack of sanitation, poor access to healthcare, and the impossibility of physical distancing, combined with the high figures of contagion, make prisons in the state of Rio reservoirs for the rapid spread of the virus.
The plaintiffs point to a number of urgent problems, such as a lack of testing, identification, and registration of suspected cases of COVID-19. They also highlight the prevalence of poor health care within the penitentiary system, which constitutes a continuation of sub-standard pre-pandemic conditions, while arguing that the number of prisoners released has been too low to contain the spread of the virus. Moreover, the plaintiffs condemn an overall lack of transparency on the spread of the virus within the prison system and measures taken to address it.
Open Society Justice Initiative Involvement
As part of its efforts to respond to human rights challenges posed by the COVID-19 pandemic in places of detention, the Justice Initiative, along with Brazilian organizations Conectas and Elas Existem, filed an amici curiae brief in the collective action case. This brief adopts a public health lens through which to highlight State obligations toward incarcerated individuals during the COVID-19 pandemic, drawing from international and regional human rights law and jurisprudence. In addition, it cites opinions by eminent medical and scientific experts affiliated with Physicians for Human Rights, Yale and Stanford Universities, and the Oswaldo Cruz Foundation (FIOCRUZ), as well as opinions from penitentiary experts from the Irish Penal Reform Trust and the Italian non-profit organization Antigone.
The analysis and recommendations in the brief cite international and regional standards on health care in detention, epidemiological analysis, and positive practices from other jurisdictions.
- Healthcare is a fundamental right in prison: As a result of the right to health held by incarcerated persons, the State of Rio de Janeiro is under an heightened duty to protect the physical well-being of incarcerated people by, among other measures, providing them with an adequate level of health care.
- The right to health is not limited to treatment, but includes access to preventive medicine and adequate sanitary conditions: Poor prison conditions, including overcrowding, a lack of sanitary and safety provisions, and insufficient health care services can result in inadequate sanitary conditions.
- Equivalence of care: Incarcerated persons must have access to the same standard of healthcare as is available to the public. Medical services must be delivered without discrimination, including on such grounds as race, gender, sexual orientation and identity, language, religion, political opinions and membership or participation in any particular social group or social activities, national or social origin, and birth or legal status. Access should be free of charge, fair, and transparent, and should effectively meet the medical needs of prisoners.
- Failure to provide healthcare violates the right to health, life, and the prohibition of torture: Failure to guarantee adequate detention conditions, including proper medical care, can lead to the violations of several fundamental rights, including, but not limited to, the right to health, protection from torture and ill-treatment, and the right to life.
- Effective interagency management of COVID-19 in prisons: Proper interagency cooperation, in particular effective coordination between prison administrators and the state public health system, is crucial to guaranteeing that public policies and practices are applied to places of detention.
- Transparency about COVID-19 in prison and mitigation measures: Active transparency regarding the spread of COVID-19 in prison, and preventive measures taken in response, is crucial to guaranteeing the well-being of people deprived of liberty.
The amici curiae brief argues that risk mitigation in prisons—in line with international human rights standards—is the only feasible public health option. As such, to comply with its legal obligations, the brief recommends that the State of Rio de Janeiro, and Brazil generally, immediately implement the following: 1) physical distancing measures, to ensure adequate living space for prisoners and non-punitive isolation spaces where necessary; 2) prevention measures, including comprehensive testing for COVID-19, access and free distribution of personal protective equipment (e.g., face masks), hygiene and cleaning and sanitation products to prisoners and prison staff; 3) transfer of prisoners to public hospitals when adequate care is unavailable in the prison facility; 4) publication of information regarding COVID-19 in prisons and transparency to prisoners regarding measures taken to stem the spread.
The Justice Initiative, Conectas, and Elas Existem submit a joint amici curiae brief to the court which cites attached expert opinions by medical professionals from Physicians for Human Rights and statements from experts on prison systems in Ireland and Italy. It also cites an affidavit from scientists from Yale, Stanford, and FIOCRUZ submitted by the Plaintiffs.
The Public Defender and Public Prosecutor Offices of Rio de Janeiro file an appeal regarding the court’s denial of requested interim measures.
The Court of First Instance refuses to grant interim measures.
The Public Defender and Public Prosecutor Offices Rio de Janeiro lodge a collective action against the state of Rio de Janeiro, the Municipality of Rio de Janeiro, and Associação Filantropica Nova Esperanca, requesting interim measures to ensure prisoner safety.
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