1. PRISON MANAGEMENT PUTTING IT INTO PRACTICE What constitutes prisoner transfer? 171 The period of prisoner transfer includes the time of transit itself, as well as the time spent waiting, for example in court rooms, hospitals and airports. 172 Rule 73(3) makes it clear that the transport of prisoners “shall be carried out at the expense of the prison administration and equal conditions shall apply to all of them”. The responsibility of prison administrations to protect the safety of staff and prisoners during transfer is also emphasized in Rule 1, which makes it clear that their safety shall be ensured “at all times”. 173 Regulations and safeguards must apply regardless of who is in charge of the transportation. This is important to note because in some jurisdictions prisoner transfer is carried out by other state agencies or even private companies. Even if the state outsources prisoner transfers it retains the ultimate responsibility for protecting the human rights of prisoners under its control. As the Guiding Principles on Business and Human Rights make clear, “[s]tates must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.” The Principles also require that, “[s]tates should exercise adequate oversight in order to meet their international human rights obligations when they contract with, or legislate for, business enterprises to provide services that may impact upon the enjoyment of human rights”.66 1 Who is responsible for safety and security during transfer? Safeguards 174 Prisoners should never be transferred to another facility as a form of punishment. 175 Security classification, risk and needs assessments also have a bearing on how prisoner transfers are conducted. This implies separation of prisoners depending on their risk assessment, and separate transport if necessary. This will usually imply the use of different vehicles but, depending on the context and rationale for separation it may be implemented using vehicles with a separating screen/wall. 176 When prisoners are transferred to another facility their possessions should be transferred with them and should be protected from loss or damage during the transfer itself. The issue of prisoner property is dealt with in Rule 67. 177 When prisoners are transferred to another facility, their files, including their medical files, should also be transferred. This is particularly important to protect against missing key dates related to their case and continuity of medical care. Principles of confidentiality with regard to prisoner files must also apply during transfer. 178 The day and hour of any prisoner transfer must be entered into the prisoner file management system, as stipulated by Rule 7(c). Night-time transfers should be avoided unless they are absolutely necessary. 179 Transfer to other prisons should not entail a loss of training and education opportunities, and must not result in deterioration of access to any specialized health-care required by the prisoner. Recognizing that it may not be possible to continue the exact course a prisoner may have started, efforts should be made to transfer prisoners to facilities that can offer comparable opportunities. 66. Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, United Nations, 2011, Foundational Principle 1 and Principle 5 at www.unglobalcompact.org/library/2. Guidance document on the Nelson Mandela Rules 39