IACHR

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Rapporteurship on the Rights of Persons Deprived of Liberty Makes Visit to Costa Rica

March 11, 2016

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Washington, D.C. – IACHR Rapporteurship on Rights of Persons Deprived of Liberty conducted a working visit to Costa Rica from February 15th to 18th, 2016. It was the first visit of this Rapporteurship to Costa Rica, and its main purpose was monitoring the human rights situation of persons deprived of liberty, specifically, to analyze the main improvements and challenges that the Costa Rican State faces to reduce the use of pretrial detention. The delegation was composed by the Commissioner James Cavallaro, President of the Commission and Rapporteur on the Rights of Persons Deprived of Liberty, and staff of the Executive Secretariat.

The IACHR thanks the Costa Rican State for the valuable cooperation and facilities provided to make this visit possible. It appreciates the commitment of authorities in receiving the Rapporteurship in order to carry out its monitoring work. It also welcomes the transparency showed by different authorities who provided the information required, primarily by the National Mechanism for the Prevention of Torture, and appreciates the support given to access to prisons visited. The Commission also welcomes the information provided by the Costa Rican civil society.

Within the scope of the visit, the Rapporteurship of the IACHR met with various officials, including the Deputy Foreign Minister, Alejandro Solano; the Minister of Justice, Cecilia Sanchez; the Director of Public Defense, Marta Iris Muñoz; and the Vice President of the Supreme Court, Judge Jose Manuel Arroyo Gutierrez. The Rapporteurship held a panel discussion on the measures adopted by the Costa Rican government to reduce pretrial detention. This activity was held in conjunction with the Inter-American Institute of Human Rights ("IIHR"), the Human Rights Center of Stanford University and the Center for Justice and International Law ("CEJIL"), and included the participation of the National Mechanism for the Prevention of Torture, the Ombudsman, the Public Defender, prosecutors, judicial officials, and representatives of civil society. Moreover, the Rapporteurship visited the San José Institutional Program Center (popularly known as San Sebastian prison) and the Center of Institutional Care La Reforma.

In particular, the IACHR appreciates the statement by the Deputy Foreign Minister of Costa Rica in the sense that the Inter-American Human Rights System "is the cornerstone of human rights on the continent so that there is greater protection of human rights in the states "as an expression of the commitment of the Government of that country in the matter.

Based on the information gathered by the Rapporteurship of the IACHR in its working visit, the Commission stresses below several aspects related to the rights of persons deprived of liberty in Costa Rica.

Costa Rican prison system

The Costa Rican prison system consists of four programs: a) institutional, b) semi-open, c) open, and d) juvenile criminal system. According to information of the Ministry of Justice and Peace, in January 2016, the system had a total of 35,543 people, of which 37.6% - that is 13,390 people - were in penitentiaries. The institutional system, which corresponds to the closed level where people serve sentences of freedom, includes thirteen detention centers called Centers of Institutional Care ("CAI"). These centers have a capacity for 9,130 persons deprived of liberty, and now have a total of 13,157 people, which implies a level of widespread overcrowding of 44.1%. In particular, the Commission notes that according to figures from the Ministry of Justice, prisons are overcrowded are in critical situations, such as CAI Gerardo Rodriguez, the CAI San Carlos, and the CAI San José.

According to official data, in January 2016, 4.696 people were placed in the semi-open program. This program involve deprivation of liberty since it leaves people in family and work environments, but it has the imposition of sleeping in the respective centers according to the form established by the National Institute of Criminology. In addition, this program is characterized by having close and comprehensive monitoring of the authorities. The open or "in community" program includes 16,740 persons, who enjoy conditional release, disease incidents, bails, alternative penalties, security measures and other relocations. Finally, in the juvenile justice program, by January 2016 the Juvenile Criminal Law took to trial 229 institutionalized minors..

Pretrial detention and prison overcrowding

In its Report regarding the Use of Pretrial Detention in the Americas, the Commission concluded that the non-exceptional use of pretrial detention is one of the most serious and widespread problems faced by the member states of the OAS in terms of respect and guarantee of rights of persons deprived of liberty. In particular, it established that the no exceptional and prolonged use of pretrial detention has a direct impact on increasing prison population, and thus in the negative consequences resulting from overcrowded conditions of detention and the prison’s administration in itself. Regarding the use of pretrial detention, the IACHR recalls that it must be strictly exceptional in nature and its implementation must be adapted to the principles of legality, presumption of innocence, reasonableness, necessity and proportionality.

According to official figures, in January 2016 there were 2,530 persons in pretrial detention in Costa Rica, representing 18% of the total detainee population. In this regard, the Rapporteurship was informed that pretrial detention is not utilized exceptionally, and it prevails over the implementation of alternative measures; this, because deprivation of liberty would be considered the "appropriate measure to solve the problems of crime". In this regard, the Vice President of the Supreme Court stated, "there is an abuse of pretrial detention, and this figure has increasingly become a rule rather than the exception." Meanwhile, the Minister of Justice referred to the "irrational use" of preventive detention; and a person deprived of liberty in the prison of San Sebastian expressed "We are not investigated to be detained. We are detained to be investigated."

In the prison of San Sebastian, which has only inmates in pretrial detentio, prison authorities reported that 34% of people are released no later than 15 days after admission, and 60% leave the penitentiary in a period of 60 days; however, they also mentioned that in many cases the permanence of the inmates was "indefinite", even exists people who had been in prison for more than eight years. Similarly, authorities expressed concern over the "regular" use of pretrial detention, which would be reflected in approximately a third of persons in custody remains in jail for 15 days- and the consequences that its use would bring in the increase of overcrowding, the "economic attrition" for the state, and stigma in the lives of people. Moreover, a judicial official said, "the permanence between one and three months of most prisoners shows that actually the application of [this measure] is not justified". In this regard, the Commission recalls that persons in custody suffer greatly by the loss of income and the forced separation from family and community; also they suffer psychological and emotional impact of being deprived of liberty without being convicted, and usually are exposed to an environment of violence, corruption, unsanitary and inhumane conditions in prisons in the region. Therefore, States must apply pretrial detention exceptionally, precisely because it is the most severe measure that can be imposed on a defendant, it implies imprisonment, with all the real consequences entailed on the person and his or her family.

Moreover, the Rapporteurship was informed by representatives of the three branches of the government and civil society on the implementation of “tough” criminal policies in order to seek solutions to problems of public safety that would have increased in recent years in Costa Rica, and that would result in a "hardening" of laws on the subject. In this context, in April, 2009 through the Law No. 8720, "Protection of victims, witnesses and other parties involved in criminal proceedings, renovations and addition to the Criminal Procedure Code and the Penal Code", various legislative reforms were introduced, which according to the information received by this Commission, they would have significantly impacted on the increase of prison population in Costa Rica. Among the legislative modifications its included the following: a) the inclusion of new punishments of deprivation of liberty- called " contraventions " or minor conduct on the Penal Code, which previously were qualified; b) increase in the amount of penalties for certain crimes and in some cases elimination of the possibility to apply for the benefit of conditional execution of the sentence even when the person qualifies to obtain it according to the profile and crime, c) adding to the Criminal Procedure Code an expedited procedure for crimes in flagrante delicto, and the consequent entry into force of the Courts of Flagrancy, d) expansion on the grounds for applying preventive detention in Article 239 BIS Code of Criminal Procedure. In this regard, the IACHR notes that the increase in the prison population is clearly reflected in the figures of the Ministry of Justice and Peace, which indicate that in 2009 the Costa Rican prisons had a 10% overpopulation, and in 2015 has reached a 46% of overcrowding.

Furthermore, the Inter-American Commission expresses concern at the information received from different sources, as the media and public opinion of Costa Rica would pressure to address public safety problems by the application of sentences that impose deprivation of liberty. In particular, representatives of Costa Rican civil society reported that judicial authorities who promoted the implementation of alternative measures face disciplinary proceedings, which severely affect their independence and the consequent determination of alternative measures to deprivation of liberty. In this regard, the Commission recalls that the rational use of non-custodial precautionary measures of freedom, according to criteria of legality, necessity and proportionality, is not at odds with the rights of victims, nor it constitutes a form of impunity.
To hold otherwise would be to ignore the nature and purposes of pretrial detention in a democratic society. Therefore, it recommends the Costa Rican government to redirect its public policies, incorporating the exceptional use of pretrial detention as a hub of criminal policies and public safety as well as to avoid responses hardening of penal systems that impact the restriction of freedom for criminal proceedings against public safety demands.

In particular, the IACHR appreciates the efforts made by the Ministry of Justice in adopting measures to reduce overpopulations in the prison system, such as the relocation of persons deprived of liberty from the institutional regime to semi-institutional or semi program. According to official information, from 2010 to 2014, a total of 9,422 prison inmates were transferred to a semi-open regime. Regarding the results of the implementation of this measure, released by the Ministry of Justice earlier this year, the Commission welcomes the fact that during the reference period (2010-2014), only 2.1% benefited persons by this type of program would have re-entered to a prison for commission of unlawful conduct. It also values the convention celebrated in February 2016 between the Ministry of Justice and the Judiciary to seek closer coordination among the respective authorities to promote the application of alternative measures to deprivation of liberty.

Moreover, the IACHR currently notes that projects of law related to the rights of the persons deprived of liberty are been processed, such as the project No. 19.490 aiming to introduce proportionality on criminal offences against property and to promote social inclusion of people in conflict with the law, and the record No. 18.867, known as the Law of National Prison Service Act and Access to Justice for the Execution of Sentences. In this regard, the IACHR calls the Costa Rican government to guarantee the participation of civil society in this legislative process, and to ensure that norms are being adjusted to international standards on the rights of persons deprived of their liberty, mainly concerning the exceptional use of pretrial detention, and implementation of alternative measures to deprivation of liberty.

Alternatives measures to pretrial detention

The Inter-American Commission notes that the organs of the inter-American system, like other international human rights bodies, have consistently recommended States to apply more often non-custodial precautionary measures as part of a strategy aimed at reducing the number of persons in pretrial detention, and consequently, levels of overcrowding. The IACHR has noted that due to their nature, these measures are an effective part of a comprehensive strategy to address overcrowding.

Based on information gathered by the Rapporteurship in the working visit, the IACHR notes that Costa Rica has challenges in implementing alternatives measures to preventive detention. As mentioned above, according to the information received by the Rapporteurship, it is derived from judicial authorities who prioritize the imposition of pretrial detention over alternatives measures, motivated by government policies that encourages its use as the only effective way to address civil insecurity.

Furthermore, the Rapporteurship received information regarding the inadequate cooperation between the authorities related to the subject for the effective implementation of alternative measures to preventive detention. Despite of the above, the IACHR recognizes that the Costa Rican normative contemplates a wide range of alternatives to detention (Article 244 of the Criminal Procedure Code), and that the State has taken action to implement some of them, such as those applied by the Public Defender and the National Institute regarding women who have introduced drugs into prisons, and those derived from the Program Drug Treatment under Judicial Supervision (PTDJ) and the Program on Restorative Justice in Criminal Matters, both driven by the Judiciary.

Overall, within the past years, the rate of women who are deprived of freedom has composed approximately 5% of the total prison population, and more than 60% of cases of female detainees are linked to drug-related offenses, mostly by introducing drugs into prisons. Taking into account the high number of women in prison in Costa Rica by transporting drugs into prisons -which according to studies of the Public Defense were not only single mothers- but also that these women are the only ones responding for their daughters and sons, the Inter-American Commission highlights the enactment in July 2013 of Law 9161, which incorporated a gender perspective in the amendment of Article 77 of the Law on narcotics, psychotropic substances, drugs of unauthorized use, related activities, money laundering and terrorist financing (Law 8204). By this reform, it was incorporated the implementation of alternatives measures to women’s incarceration who committed for first time crime of drug internment in penitentiaries, and have any of the conditions of vulnerability by law; similarly, with this regulation penalties are reduced to punish this illegal conduct. In particular, the Commission appreciates the leadership of the Public Defender and the National Institute for Women in the articulation of a network of inter-branch, serving as a priority and integral to the needs of these women, and their dependents, mainly at the moment of finishing their judgment.

Regarding the Program Drug Treatment under Judicial Supervision, according to information from the Judiciary, the interdisciplinary team of the program refers persons involved in criminal proceedings, to the Institute of Alcoholism and Drug Dependency ("IAFA") in order to issue entry recommendation and indicate the specific treatment for the particular case. The program aims to provide comprehensive care to people who have committed a minor crimen for first time, who recognizes the injury done to the victim, and who committed a crime as a result of their addiction to illegal substances. Moreover, regarding the Restorative Justice Program, the Commission highlights the positive results reported by the authorities in relation to the reducuction of the length of criminal proceedings, and of the economic costs involved.

Finally, regarding the implementation of the electronic mechanisms of monitoring to replace the deprivation of liberty, the Inter-American Commission was informed by representatives of the Ministry of Justice, the prison system and the Public Defender, that these devices are intended to use in people who leave prison through other alternatives, such bail. In this regard, the IACHR is concerned that electronic monitoring, rather than being used to benefit a greater number of people, result in a double control over those that would leave the regime of deprivation of liberty by imposing some other alternative measures.

Prisons visited by the Rapporteurship

San Sebastian prison is exclusively for inmates in pretrial detention. It has a capacity for 624 persons deprived of liberty. In the day of the visit, it had a total occupancy of 1,248 inmates, in other words, more than the double of its capacity. The Rapporteurship is concerned about the overcrowding situation most of the inmates face. An example, the numbers of persons deprived of liberty of the area "B2", up to the day of the visit, hosted 271 people however its actual capacity of 88 people. Inmates in this area expressed concern to the Rapporteurship about the overcrowding and the consequences it caused, such as lack of sleeping space, and the spread of contagious diseases.

Furthermore, the Rapporteurship also noted with great concern the precarious conditions of infrastructure and sanitation. In particular, the Rapporteurship noted the lack of ventilation in the bedrooms and the heat that prevails in them. Similarly, in the various pavilions visited at San Sebastian Prison, the IACHR delegation noted the lack of privacy in the use of health services and the absence of storage spaces of personal objects. The Rapporteurship also received several testimonies from inmates regarding their respective delays in judicial proceedings. Additionally, they expressed complaints about the alleged lack of medical care, in particular, the delay in receiving care and lack of dental services.

Moreover, the Rapporteurship also visited La Reforma Institutional Center, which constitutes the prison with largest population, with a capacity of 2,380. By February 1, 2016, a total of 2,890 persons were deprived of liberty. Although this center is intended only for convicted persons, in accordance with figures provided by prison authorities, the day of the visit 34 people were in pretrial detention.

The Rapporteurship noted the deplorable conditions in the prison’s infrastructure and water scarcity, the aspects were also widely recognized by inmates during the tour of the prison. The Commission found that bathroom services consisted of a hole in the floor, that windows did not have glasses, that sewers were open, and dorms were characterized by lack of ventilation and lighting. In addition, according to prison authorities, of a total of 2,890 persons deprived of liberty, only 200 would participate in work activities, such as electricity, lumbering and agricultural activities. Unemployment was repeatedly referred as one of the biggest disagreements with the regime of the prison. In this regard, the Commission is concerned about the deficiencies and limitations in social rehabilitation programs, reflected in the low percentage of access to them. Moreover, inmates of La Reforma expressed complaints about alleged negligent medical care, mainly characterized by the delay in receiving these services, and the lack of psychiatric and dental care. The Rapporteurship also received testimonies regarding the widespread practice of denigrating and humiliating body searches of inmates’ visitors; in this sense it was also informed about the searches carried out in halls.

Of the eight areas that compose La Reforma, the Commission highlights the section "F", the first maximum security regime at thenational level. It has a capacity of 44 people, finding up to the day of visit 43 interns. Although section "F" functions as a maximum security regime, prison authorities informed that most inmates placed there does not correspond to the profile of people who generally are under systems of this nature of detention. Inmates in this area are characterized by "coexistence problems", or because they need protection to keep separated of interns from opposite groups. The regime in section "F" is characterized by the prolonged use of isolation systems of 23 hours a day, with one hour of sun from Monday to Friday, taken individually by each inmate. Also, there is a restriction of communication between inmates, as well as difficulties in having contact with the outside by having only a 4-hour tour in every fortnight. The cells in which inmates live 23 hours a day are singles and measuring 3 by 3 meters. The Rapporteurship observed that these cells are in deplorable conditions, and that the two small windows they have, do not allow the entry of natural light or ventilation. Also, based on the testimonies of prisoners located in this area, the Commission noted complaints about the occurrence of flagellation in order to catch the attention of the authorities and receive medical care. In particular, according to a report Supervisor Security Reform during the week from February 7th to 13th , there were 5 cases of self-harm in section "F".

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 033/16