Q&A: Safeguarding Human Rights in Detention and in Encounters with Law Enforcement during COVID-19

In November and December 2020, the Open Society Justice Initiative and the World Organisation Against Torture (OMCT) partnered with the Collectif des Associations Contre l’Impunité au Togo (CACIT), the Philippine Alliance of Human Rights Advocates (PAHRA), and the Centro de Derechos Humanos Fray Bartolomé de las Casas (Frayba) for a series of workshops with litigators and advocates from around the world. The goal of these “Litigation Labs” was to share ways to use litigation and advocacy to defend the rights of people in detention and combat abusive law enforcement practices during the COVID-19 pandemic.

Helena Solà Martín, OMCT senior legal policy adviser, and Duru Yavan, legal associate with the Justice Initiative, spoke with two Argentinian practitioners, Lucas Lecour, director of the human rights non-profit Xumek, and Agustina Lloret from the Centro de Estudios Legales y Sociales (CELS), about activities they engaged in, which was shared with other participants of the Litigation Labs.

What kind of work did Xumek do in Argentina to protect the rights of people held in detention?

Prisons are extremely overcrowded throughout Latin America, including in Mendoza, the Argentinian province where Xumek is based. Our main fear at the beginning of the COVID-19 crisis was around the consequences of the virus spreading in detention where none of the necessary security, hygiene, or health measures could be complied with.

Therefore, first, we developed a strategy to reduce prison overcrowding. Collective habeas corpus—legal actions or “writs” seeking the urgent intervention of a judge to protect the rights of a group of detainees—was the only possible legal avenue: complaints could not be filed individually because we did not have access to individual information about who did or did not meet the requirements and criteria for release. We focused on securing release for people at risk due to age or health, as well as those charged with minor offenses—who should not have been detained in the first place—or those who could be granted early release or house arrest. Furthermore, we worked toward the release of minors and persons held in mental health centers.

Judges of juvenile courts were the fastest to react, resulting in juvenile detention centers being virtually emptied. When it came to adult detention, the courts responded very positively in the beginning. At first, people close to finishing their sentences were allowed to serve under house arrest, and an inter-ministerial task force was set up to reduce overcrowding in the penitentiary system. But now, courts are reluctant or unwilling to rule in favor of detainees, particularly when it concerns their release.

As the pandemic enters its third year, what lessons have litigators learned when it comes to protecting the rights of persons in detention?

It is important for litigators to share ideas and identify actions that could work in a global context of uncertainty and fear. For instance, Xumek’s habeas corpus actions in Argentina directly inspired other filings by human rights lawyers in Guatemala and Honduras. In another example, Justice Project Pakistan developed a “vulnerability index” that gave them a way of identifying which prisoners should be released from detention centers based on disease risk factors, the type of sentence, pre-trial or convicted status, conditions in the detention centers, and other parameters. Based on this index, Justice Project Pakistan prepared a list of policy recommendations to the Pakistani government. This same tool was very useful in convincing judges in Argentina.

But at a moment, when there is strong public opposition to some of the measures we are proposing, we must continue to win over public opinion and persuade courts and the public at large to sustain their support for humane conditions in detention. On the one hand, we saw public solidarity with people in detention at the start of pandemic; on the other hand, the shortcomings and challenges of the prison system were laid bare along with those of the health and educational systems.

After the first month of progress achieving wins for people in detention, immediately after the pandemic was declared, misinformation began to circulate, as did accusations that authorities were "releasing rapists and criminals.” Cacelorazos, a form of popular protest which consists of banging pots and pans, took place against prisoner release, which ended up being halted at the height of the pandemic. While Xumek has continued to take legal action, the judiciary is now being slow to improve prison conditions and reduce overcrowding.

How did CELS work toward accountability for human rights violations committed by law enforcement agencies in Argentina?

In the early stages of the pandemic, national and provincial governments in Argentina increased their police presence and, to enforce quarantine measures, expand their powers. This soon generated more instances of police abuse and excessive use of force, including murders and arbitrary detentions.

For example, CELS is representing Fabiana, a 60-year-old woman arrested on March 30, 2020, after calling the police to warn them about the lack of COVID-19 related hygiene and safety measures in a local supermarket. She was locked up incommunicado for three hours, during which police officers shouted at her, insulted her, stripped her naked to take pictures, and did not explain why she was being held in custody—while keeping her handcuffed on a bench. The victim filed a complaint and, after two attempts to close the case, she was heard by a prosecutor. The investigation is now moving forward.

To document and denounce cases of police violence during the pandemic, CELS created a registry of cases, used social networks to draw attention to instances of abuse, and requested written information from justice operators and the executive branch to urge measures to protect individuals from arbitrary abuse and take criminal and disciplinary action against the perpetrators. We were even successful in pressuring the government to repeal a law passed in the province of Salta that gave judicial powers to the police so that they could arrest, collect evidence, judge, and fine or detain individuals without providing access to a defense lawyer or a prosecutor.

As we are now in the third year of the pandemic, what are the lessons to ensure accountability for police abuses in the context of emergency laws and COVID-19 restrictions?

The fact that we were quarantined at home forced us to generate alternative communication strategies, often more informal (phone calls, video calls), with judicial, police, and executive officials, which proved to be effective.

Another important lesson learned is that virtual trials should not be held in cases where fundamental rights are at stake, because they do not allow for the same access to the public and do not allow for evidence to be appreciated in the same way, particularly when it comes to witness testimony. Therefore, despite the fact that this sometimes resulted in delays, CELS prioritized waiting and being able to hold face-to-face rather than virtual trials.

It is also highly important to focus on abuses against people from the most disadvantaged and impoverished sectors of society. For instance, the practice of gatillo fácil, or "easy trigger"—referring to the use of lethal force during regular police operations—targeting first and foremost young people from marginalized neighborhoods, continues to be of great concern.