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CoE Committee of Ministers decisions on prisoners rights (March 2024)

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>> read our technical brief on the Committee of ministers’ approach to prison overcrowding

The Ministers’ Deputies noted that in spite of a wide range of measures adopted by the authorities to remedy the problem of prison overcrowding (from the ban of prison sentences of less than a month, to the increase and out-of-cell activities and awareness-raising activities in favour of alternatives to detention), the latest available figure show a worsening of the situation, with a steady increase in the prison population, and a rising occupancy rate affecting primarily remand centres and blocks (as of 1 November 2023, they were 75,130 prisoners and the average occupation rate was of 123.2 %, up from 70,059 prisoners and an occupancy rate of 116.5% on 1 January 2019).

As argued by several civil society organisations, the measures introduced are insufficient to impact prison overcrowding in the long term. In particular, the adjustment of sentences ab initio “encroach[es] on suspended sentences rather than prison sentences” (see CM Notes summarising the Judges’ Union’s submission), and “cause[s] longer sentences” (CM notes summarising the National Bar Council’s submission). It is also argued that the growth of the prison population is the result of an “increased severity of the law enforcement system (more immediate appearances, detentions on remand, behavior punishable by a prison sentence and longer sentences)” rather than a change in crime in society (CM Notes summarising the International Prison Watch’s submission).

The CM Secretariat also underlined that the foreseen expansion of the prison estate (15,000 new prison places, bringing the total to 75,000 by 2027), which is not a solution on its own, appears to be already outdated in view of the most recent figures (75,897 detainees on 1st January 2024).

The Deputies therefore encouraged the authorities “to reconsider their strategy for combating overcrowding by tackling its root causes and by carrying out a detailed assessment of the impact of the latest reforms, taking into account the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) as well as the observations of those working in the field” (CM decision, § 5). In this respect, the CM Secretariat stressed once again “the crucial role of the judge […as] the only person who can order release or sentence adjustments and thus act on the “sources” of violation of Article 3” (CM Notes).

The Deputies invited the authorities to “give serious and rapid consideration to the idea of introducing a binding national prison regulation mechanism […] in view of the urgency of the prison situation and the growing number of recommendations on this subject” (§ 6, see also the CM Notes for a list of such recommendations).

Taking as an example the measures adopted by Italy following the Torreggiani pilot judgment (Torregianni and others v. Italy, no. 43517/09, 2013), the Deputies also recommended to “establish an alert mechanism which would make it possible to monitor in real-time the actual living space available to detainees and thus to remedy situations where detainees have less than 4m²” (§ 7, see also CM Notes for a direct reference to the implementation of Torreggiani v. Italy).

Finally, while noting with satisfaction the information provided suggestive of the effectiveness of the judicial remedy, the Deputies have not given a definitive opinion on the matter.

At the outset, the Deputies recalled that the group of cases has been pending execution for nearly 13 years, in spite of the Committee’s repeated calls on the authorities to “to adopt a comprehensive long-term strategy to resolve the problem and introduce a domestic effective remedy” (CM Ddecision, § 3). It also underlined that more than 1,200 applications concerning detention conditions in prison are pending before the Court.

While they noted with satisfaction the increase of the prison estate (as the capacity of prisons which is currently higher than the overall prison population), the decrease of the prison population by 10% since 2022, as well as the ongoing discussion on a New Strategic Plan for Prisons for 2024-2026 (which has been prepared without public consultation, according to the Hellenic League for Human Rights’s submission), the Deputies noted “with deep concern that overcrowding still affects at least 15 penitentiary facilities in the country” out of 34 (§ 5).

Among other measures (adoption of a long-term strategy, provide for the even distribution of prisoners among facilities, develop alternatives to imprisonment), the Deputies encouraged the authorities to put in place the infrastructure allowing for “a comprehensive assessment of the concrete impact of criminal policy on prison overcrowding” (§ 5). The CM Secretariat recalled in this respect that a recent study had found that “the high number of persons sentenced to long terms of imprisonment as a factor driving overcrowding” (CM Notes).

As regards the domestic remedy introduced in 2022, the Deputies noted “with concern that this remedy has only rarely been used successfully in practice” (§ 11), invited the authorities to “take all possible measures at their disposal to ensure its effectiveness” (§ 11) and asked for updated data on its use.

>> on the new remedy, Read EPLN & CECL’s third party intervention in the case P.S. v. Greece (no. 2500/22, communicated in 2022)

The Deputies recalled that the group of cases has been pending execution for more than 12 years. They noted with deep concern the worsening of the situation, as shown by the overall occupation rate of 108% and the upward trend in the prison population, as well as the fact that 13 prisons operate above their capacity out of 32. They called on the authorities to take further measures “embedded in a coherent and overarching penal policy […] and to introduce an effective remedy system” (CM Decision, § 4).

The Deputies especially “urged the authorities to double their efforts to increase the use of alternatives of detention” (§ 5), since, as underlined by the Secretariat, in the case of Hungary “the only viable way to control overcrowding is to adopt policies designed to limit or moderate the number of persons sent to prison” (CM Notes).

As regards the compensatory remedy, the Deputies noted with concern that severe shortcomings remain to be addressed (i.a access to the compensation awarded depends on a discretionary decision of the prison governor, without precise criteria protecting individuals against arbitrariness). These shortcomings could have an impact on the willingness of lawyers to take on such cases – see CM Notes and the Hungarian Helsinki Committee’s submission). The Deputies also underline that the lack of statistical data prevent them from assessing the remedy’s effectiveness.

Following the abolition of the specific preventive remedy in 2021, “no other specific legal remedy designed to redress inadequate prison conditions has been re-introduced” (CM Notes), despite repeated calls from the CM. The lack of statistical data prevented the Deputies from assessing the effectiveness of the general preventive mechanisms. Against this background, the Deputies “strongly urged them to either reintroduce a specific preventive remedy or to provide comprehensive case-law and practice demonstrating the functioning of the general remedy, while also inviting them to consider the reintroduction of judicial review” (§ 8).