ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES The experts reviewed the report of the UN Special Rapporteur on Torture who has stressed that a punishment disproportionate to the offence ‘would be tantamount to improperly making the nature of the deprivation of liberty harsher’.285 The experts recalled that proportionality must be ensured on a case by case basis and any sanction must be commensurate with the harm caused by the infraction as well as the individual circumstances of the prisoner involved. The participants pointed to guidance provided by the European Committee for the Prevention of Torture (CPT), which held that in order to be proportionate, any restriction of a prisoner’s rights ‘must be linked to the actual or potential harm the prisoner has caused or will cause by his or her actions (or the potential harm to which he/she is exposed) in the prison setting’.286 The experts reasoned that the interpretation of ‘harshness’ is subjective to some extent, and sanctions perceived as minor by one prisoner may have severe repercussions for another, depending on their personal circumstances. This is supported by the commentary to Rule 5 of the UN Standard Minimum Rules for the Administration of Justice (Beijing Rules),287 although it refers to criminal sanctions. It states that consideration should not only be based on the gravity of the offence but also on personal circumstances, and lists as examples ‘social status, family situation, the harm caused by the offence or other factors affecting personal circumstances’. In this context the Essex group reiterated that restrictive measures must not be applied to prisoners by virtue of their sentence and endorsed the assessment of the Committee Against Torture (CAT) which rejected ‘the application of additional and severe punishments on prisoners serving life sentences, such as handcuffing when outside cells, and segregation’.288 Furthermore, the experts stressed that rules and regulations governing sanctions and restrictive measures need to be reviewed over time in the light of the proportionality principle. The Essex group highlighted the considerable impact of the regime of disciplinary sanctions, discipline and restrictive measures on the institutional culture of a prison facility and on the rehabilitation and reintegration prospects of prisoners.289 They noted an example documented by the UN Sub-committee for Prevention of Torture (SPT), where due to the modalities regarding disciplinary measures the ‘overall attitude was one of resignation and fear of reprisals’.290 Consideration of disabilities The Essex group pointed to Rule 39(3) which requires that prison administrations consider ‘whether and how a prisoner’s mental illness or developmental disability may have contributed to his/her conduct’ before imposing disciplinary sanctions. Special Rapporteur on Torture report 2013, A/68/295, para. 57. 285  CPT, 21st General Report: 1 August 2010-31 July 2011, Strasbourg, 10 November 2011, [CPT/Inf (2011)28] para. 53 onwards (CPT 21st General Report), para. 55(a). 286  Adopted by UN General Assembly resolution 40/33 on 29 November 1985. 287  UN Committee against Torture, Observations of the Committee against Torture on the revision of the United Nations Standard Minimum Rules for the Treatment of Prisoners (SMR), 16 December 2013, CAT/C/51/4, para. 39 (CAT SMR revision observations). 288  See PRI/APT, ‘Institutional culture in detention: a framework for preventive monitoring’, Detention Monitoring Tool, 2nd edition, 2016. 289  Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Report on the visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to Ukraine, 16 March 2016, CAT/OP/UKR/1, para. 124 (SPT Report on visit to Ukraine). 290  Penal Reform International and the Essex Human Rights Centre | 80