COVID-19 and prison overcrowding; temporary home detention of certain inmates during pandemic

Constitutional Review of Presidential Decree 546 of 2020

Date:  07/22/2020

Judge-Rapporteur:  Diana Constanza Fajardo Rivera

Concurrence:  Diana Constanza Fajardo Rivera

Dissent:  Diana Constanza Fajardo Rivera (partial).  Antonio José Lizarazo Ocampo (partial).  Cristina Pardo Schlesinger (partial).  José Fernando Reyes Cuartas (partial).  Alberto Rojas Ríos (partial)

Reviewed decree.  The decree designed measures to temporarily decongest the prisons due to the spread of Covid-19.  Among other measures, it allows the inmates to serve time at home, given certain requirements and under specific security conditions.  It particularly granted the mentioned benefit to persons in the following circumstances: older than 60 years, pregnant women or with three-year-old child or younger, suffering cancer, and/or with motor disability,

Issue:  Can the measures to counteract the spread of Covid-19 imply granting home detention for inmates in overcrowded prisons?

Ruling and reasoning.  Yes. The Court RULED THE CONSTITUTIONALITY of the decree but CONDITIONED the enforcement of a number of its precepts according to specific reasons as explained below.  In general, the Chamber declared that measures can be taken within the constitutional and legal framework of functions of the executive given the exceptional circumstances generated by the pandemic.  However, detailed conditions for the following precepts:  Article 2, d), about the benefit for inmates with motor disability, whose constitutionality is conditioned on the understanding that it does not exclude persons with other forms of disability.  Article 5 about the exclusion of prisoners subject to extradition processes, except when they fall in any of the circumstances above-mentioned in the first paragraph, for whom the benefit to be secluded in special safe places applies.  Articles 3 and 10 order the inmate to present him/herself at the end of the period served at home.  In this case, s/he may not be confined again in the place where s/he was before.  Other clarifications were added by the Room, about the right interpretation of the procedure specifics in order to protect the inmates’ rights.