On October 10, 2022, the Inter-American Court of Human Rights published its Advisory Opinion No. 29. The decision, adopted at the request of the IACHR, develops the need to adopt differential approaches in prison to guarantee the rights of prisoners in the following groups: (a) pregnant, childbirth, postpartum, and lactation women; (b) children living in prison with their mothers or primary caregivers; (c) LGBT groups; (d) indigenous people; and (e) older adults.
The process of elaboration of the Advisory Opinion had an enormous number of contributions, which is demonstrative of its relevance. The Court itself, in exercise of its contentious jurisdiction, decided in the past numerous cases related to human rights violations in prisons: Miguel Castro Castro Prison vs. Peru (2006), Chinchilla Sandoval vs. Guatemala (2016), Hernandez vs. Argentina (2019), Mota Abarullo vs. Venezuela (2020), and Manuela vs. El Salvador (2021), among others.
Cross-Cutting Considerations and Singular Developments
Among the cross-cutting considerations for all groups are: the absence of control, poor detention conditions, overcrowding, institutional violence, the widespread use of pretrial detention, and punitive discourse as a privileged tool for addressing social conflict. The Court constructs its decision within a context crossed by these phenomena. The legal question to be resolved does not occur in the plane of abstraction, but in a regionally situated one. Within this context, the Court also addresses the extraordinary challenges that COVID has produced in Latin American prisons.
Already entering the legal reasoning, the Court establishes the obligation to use a differential approach in favor of the proposed groups to guarantee equal access to their rights. This approach must not only be differential but also intersectional: it must not treat vulnerability variables in a fragmented way, but rather intertwined. The Court adds that this view not only concerns the groups included in the Advisory Opinion, but rather goes further. That is, it is projected as a general vulnerability analysis approach.
According to the Court, differential measures should not be considered a privilege or discriminatory treatment with respect to other groups, but rather ways of compensating for historical inequalities and/or reversing structural effects. The court recognizes that in the deprivation of liberty "the systems of social domination based on the privilege of some and the oppression of others are also reproduced and exacerbated, such as patriarchy, homophobia, transphobia and racism" (para. 65).
There are numerous specific developments that the Court makes about each group involved in the Advisory Opinion:
Pregnant, Childbirth, Postpartum, and Lactation Women
Regarding pregnant, childbirth, postpartum, and lactation women, as well as main caregivers (Chapter V), it is emphatic in affirming that only exceptionally could they be detained in prisons. Hand in hand with a criticism of the policies of criminalization of women and the androcentric nature of prisons, the court favors alternative approaches to prison detention.
In the prison sphere itself, the Court makes special use of the Bangkok Rules (“specific guidance guidelines”) and details numerous duties. Among them:
- The provision of food, clothing, hygiene, and sexual and reproductive health benefits in accordance with that state.
- The prohibition of different practices that it conceptualizes as "obstetric violence" and that it frames in light of the Convention of Belem do Pará. This is an improvement over previous contentious cases, such as I.V. vs. Bolivia.
- Calls to guarantee the contact of women in prison with their family groups outside the walls and, in the case of migrant women, to seek agreements to facilitate family reunification.
Children Housed in Prison with Their Mothers
Regarding children housed in prison with their mothers or main caregivers (Chapter VI), the Inter-American Court highlights the exceptionality of this situation and demands alternative approaches. It dwells on the bonding of boys and girls with their mothers, but points out that the standards could be applicable in detention centers where they live with their parents or caregivers without distinction of gender, "in view of the co-responsibility of both parents regarding the care tasks” (para. 169).
It proposes a case-by-case standard, with an "individual and rigorous" evaluation in order to weigh the rights at stake, with the best interest of the child as a primary consideration and taking into account her opinion. The Court requires studying the issue without stereotypes, which is relevant if one thinks of those that weigh on mothers in prison.
With regard to boys and girls in prisons, the Court reviews regional legislation that allows their accommodation there, but reinforces the idea that the penalty should not transcend them and the need to accommodate the spaces to their needs, along with a guarantee of their personal integrity, their private life, their normal development, family contact with the outside world, and access to goods such as food, health, education, and recreation.
Regarding LGBTI persons (Chapter VII), the Court begins with the incorporation of intersex persons into the analysis, even though this group had not been explicitly included by the IACHR in the consultation. The court based this consideration on the fact that "they may be exposed to conditions of discrimination and violence in the prison environment that are similar to the experiences of trans people and people with non-binary gender identities" (para. 224).
The Court disputes criminalization based on sexual orientation, gender identity, gender expression, and – here a novelty – sexual characteristics. It highlights the exacerbated violence suffered by the LGBTI collective in prison, the deficit in the prevention and investigation of this violence, and the structural affectation of their rights in the prison environment. On that basis, the Court demands alternatives to prison detention if an LGBTI person's needs, in particular their security, cannot be met.
The Court highlights the limits of the binary prison paradigm and the need to respect gender identity and the opinion of the person regarding the place of prison accommodation, as well as the need to provide options depending on the case and not to use isolation as a way to satisfy the need for accommodation.
The Court also recognizes the right to gender identity and gender expression—not only in the registry dimension but in connection with the right to comprehensive health, particularly with respect to trans people. In this last sense, it advances the standards introduced in Advisory Opinion No. 24 (2017), where the intersection between gender identity and health was not dealt with in detail. Likewise, it regulates broad conditions of access to intimate visits, a matter that had not been previously explored by the Inter-American Court, but was explored by the Commission in the case of Marta Lucía Álvarez Giraldo (Colombia).
Regarding the indigenous population (Chapter VIII), the Court offers some keys to assess criminal responsibility and the determination of their sentences, due to the overrepresentation in prison that this group presents worldwide.
Then, it analyzes the impact of the prison paradigm on the right of Indigenous Peoples to community life. It calls for the use of alternative measures to prison detention and, in the facilities, demands respect for cultural identity, food, traditions, rites, language, clothing, and the choice of authorities. In addition, it highlights the need not to house Indigenous Peoples far from their communities due to the double penalty that uprooting can represent.
Regarding the elderly (Chapter IX), the Court analyzes the aging processes also in terms of disability, due to the motor and cognitive difficulties that they usually entail. On this basis, it includes in the AO the interpretation of instruments on the rights of persons with disabilities, despite the fact that there was no explicit consultation on them. It establishes broad standards of health and adaptability in prisons, while emphasizing the need to preserve the family life of those who are in this vital stage.
In short, in Advisory Opinion No. 29, the Inter-American Court systematizes standards that arise from its previous jurisprudence on the prison issue and develops new ones. These standards are not mere program guidelines, but concrete and enforceable intervention mandates. Its satisfaction requires urgent and structural reforms of all that is known, together with effective jurisdictional systems for the control of the execution of sentences.
Silvia Edith Martinez is a lawyer. She earned the designation as a Specialist in Criminal Law from the Torcuato di Tella University and received a Master in Criminal Law from Torcuato di Tella University. Ms. Martinez is an Inter-American Public Defender who has appeared before the Inter-American Court of Human Rights. She served on the Inter-American Human Rights Commission designated for the period 2013/2016 and 2016/2019. She has been a Public Defender in Criminal Issues in the Argentine Republic from April 27, 1993 to the present. Ms. Martinez also serves as an Associate Professor of Criminal Law at the School of Law of the Buenos Aires University. She has held this position since 1995. Silvia is considered a Regional Expert of the EUROsociAL Program of the European Union. Previously, she served as the Head of the Prisons Commission from October 2005 to September 2013. Ms. Martinez is the author of several publications on Prisons and Human Rights.