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PRISON IN EUROPE : DOMESTIC LEGAL NEWS

16 DECEMBER 2022

It can be challenging for practitioners to follow national case law, legislation and executive branch developments on prison issues. In this roundup, the European Prison Litigation Network, its members and partners across Europe aim to inform national lawyers and civil society organisations about the most important legal developments on prison issues. We hope this enables you to better identify European trends and use them in your legal practice. The roundup covers 14 European Union member states as well as Russia, Moldova, Ukraine and Georgia.

We welcome your feedback about how to make this roundup most useful to you.

PRISON LEGAL NEWS OVERVIEW

AUGUST-SEPTEMBER 2022

DETENTION CONDITIONS ■ A new “mega-prison” built for about 1,200 prisoners opened in Brussels, Belgium.

DETENTION REGIME ■ According to figures recently published by the Spanish government, the number of prisoners serving sentences in closed regime has been halved since the end of 2018 in the country.

DISCIPLINE ■ The Belgian Supreme Administrative Court ruled that prison directors are not obliged to seek a psychiatrist’s opinion when imposing a disciplinary sanction on a prisoner.

ENFORCEMENT OF JUDGMENTS ■ A German Regional Court upheld a suspended sanction imposed on the prison administration for non-compliance with a judgment rendered in favour of a prisoner asking for an extra hour of yard time per day.

EUROPEAN ARREST WARRANT ■ The Spanish Constitutional Court ruled that in the context of the execution of a European Arrest Warrant issued by Spanish courts, the authorities can be held responsible for a prisoner’s time spent in pre-trial detention in the executing country.

ELECTRONIC MONITORING ■ The Higher Regional Court of Vienna, Austria, ruled that a prisoner working from home fulfils the criteria of having a “suitable occupation” that is required to be granted electronic monitoring.

The Romanian government adopted a decision specifying the technical and organisational aspects of the pilot phase of the new electronic monitoring system.

HEALTH ■ In Spain, the General Secretariat of Penitentiary Institutions invited private healthcare institutions to offer their services in detention and launched a pilot project of medical consultations by telephone.

In Moldova, the first session of the working group tasked with proposing policy changes in prison healthcare took place in September 2022. The working group was set up following an important ECtHR judgment on this issue.

The Constitutional Court of the Czech Republic rejected as manifestly ill-founded a prisoner’s application to challenge ordinary courts’ refusal to suspend his sentence on health grounds.

The Romanian Ministry of Justice published a draft law on its website, subject to public debate, concerning the provision of medical assistance, treatment and care to persons deprived of liberty.

JUVENILES ■ The Austrian Ombudsperson published a report on juveniles in prison in which she assessed their living conditions, addressed structural issues and recommended improvements.

MONITORING BODIES ■ The Belgian Central Prison Monitoring Council presented its 2021 annual report. In Russia, Public Monitoring Commissions, tasked with visiting places of detention, are increasingly placed under governmental control.

NGOs ■ The Association for Human Rights of Andalusia, Spain, published a Guide to Life in Prison on its website and supported the translation into Spanish of the ECtHR’s guide on prisoners’ rights.

PRISON LAW ■ In Greece, a new Penitentiary Code is under preparation. The key proposed amendments concern detention conditions, prisoners’ rights, detention regimes, alternatives to detention and prisoners’ reintegration.

In Poland, the first elements of the penitentiary system reform came into force. These elements concern healthcare, use of telephones in prison, prison work and electronic supervision.

PRISONERS’ UNION ■ In Austria, the first Union for Prisoners’ Rights was established.

PRISONS IN WARTIME ■ EPLN & Russia Behind Bars called on six UN mechanisms to declare that the recruitment of Russian prisoners to serve in Ukraine in the ranks of the Wagner paramilitary company involves forced labour and arbitrary detention.

PRIVATE AND FAMILY LIFE ■ Amendments to the Russian Penitentiary Code extending the right of prisoners under strict regime and held in disciplinary wards to make telephone calls have been submitted to the country’s lower house.

In Portugal, a new Decree-Law allows for the installation of fixed telephones in each cell.

SENTENCE ADJUSTMENT ■ The Constitutional Court of the Czech Republic ruled that ordinary courts considering applications for conditional release must duly motivate their decisions.

In Russia, amendments to the Criminal Code increase the length of the mandatory prison sentence by up to two-thirds after which prisoners convicted of particularly serious crimes can apply to have their prison sentence replaced by a lighter sentence of “compulsory labour”.

TORTURE ■ Russian courts continue to shield prison officers from criminal liability for torturing prisoners, despite recent amendments to the Russian Criminal Code criminalising torture by state officials.

DETENTION CONDITIONS

BELGIUM ■ In Belgium, a “mega-prison” opened in Brussels (Haren) on 30 September 2022. About 1,200 inmates will be held in this new facility – the majority of which will be transferred from two Brussels prisons which are to be closed, Saint-Gilles and Forest-Berkendael. Human rights groups have widely criticized the mega-prison project. Before the opening, 55 judges were voluntarily incarcerated in the prison so they could understand what prisoners endure daily. According to the Minister of Justice, this experience should help them reflect on the need to impose custodial sentences on offenders. The newly-founded NGO named 9m² announced its intention to create a prison museum in the Forest-Berkendael prison. Competent authorities approved this initiative.

DETENTION REGIME

SPAIN ■ According to figures recently published by the Spanish government, the number of prisoners serving sentences in closed regime has been halved since the end of 2018 (from 995 to 480 – including 14 women). This sharp drop is partly due to a change in policy regarding prisoners belonging to the Basque terrorist organisation ETA (disbanded in 2018), some of whom have recently been transferred to prisons closer to their homes and placed in ordinary regime. This measure has been criticised by one the of main associations of victims of terrorism. These figures are also a consequence of the new impetus of the implementation of a 2010 project to reduce the number of prisoners in closed regime, which had remained inactive until recently.

DISCIPLINE

BELGIUM ■ In Belgium, the Supreme Administrative Court (Conseil d’Etat) ruled that prison directors are not obliged to seek a psychiatrist’s opinion when imposing a disciplinary sanction on a prisoner (decision no. CE254.461, dated 13 September 2022). In doing so, this decision overruled previous decisions of Complaints and Appeal Commissions (responsible for examining prisoners’ complaints against prison directors’ decisions), which had imposed such a requirement. The court argued that the commissions added obligations that are not provided for in the law. This ruling is expected to negatively impact prisoners’ rights, as previous cases show that prison directors are not well-equipped to assess prisoners’ mental health.

ENFORCEMENT OF JUDGMENTS

GERMANY ■ On 2 August 2022, the Hanseatic Higher Regional Court of Hamburg (Hanseatisches Oberlandesgericht Hamburg), Germany, upheld a suspended sanction of EUR 5,000 imposed on the prison administration by the Sentence Enforcement Chamber (Strafvollstreckungskammer) for non-compliance with a judgment. The sanction will be applied if the prison continues to ignore the judgment within a given period.

The case concerned an elderly prisoner who was placed in preventive detention after serving a custodial sentence of several years. He asked for an extra hour of yard time per day, in addition to the normal daily hour granted. The prison administration rejected his request, on the grounds that an additional hour of yard time is not necessary for medical reasons, would be difficult to organize, and would arouse the jealousy of other prisoners.

The applicant filed an application before the Sentence Enforcement Chamber, which considered that the applicant’s age, state of health, and lack of prospect of release could constitute an exceptional case allowing the prison administration to use its discretionary power and exceed the legal minimum of one hour per day. However, the prison administration did not follow the chamber’s legal interpretation and issued another negative decision on similar grounds, adding that the reasons of age and health condition would apply to many prisoners.

Following a second complaint filed by the applicant against the latter decision, the chamber ordered a suspended sanction of EUR 5,000. The prison administration appealed against this judgment before the Hanseatic Higher Regional Court of Hamburg. The appeal was rejected. Pursuant to section 120 of the Prison Act (StVollzG) read in conjunction with section 172 of the Code of Administrative Court Procedure (VwGO), a Sentence Enforcement Chamber may impose a suspended sanction of up to EUR 10,000 on the prison administration if it does not comply with a judgment. This condition was met in the present case. In particular, the prison administration failed to make proper use of its discretionary power because it did not comply with the considerations set out by the court in its previous decision.

It was only in 2013 that the possibility to impose fines on the prison administration was introduced into German law. Before this, it was assumed that such an instrument was not necessary against the authorities, as they had to comply with the law on their own. However, academics have repeatedly pointed out that there are “recalcitrant prison authorities” who do not implement court rulings in favour of prisoners.

EUROPEAN ARREST WARRANT

SPAIN ■ In Spain, the Constitutional Court ruled on 26 September 2022 that in the context of the execution of a European Arrest Warrant (EAW) issued by Spanish courts, the authorities can be held responsible for a prisoner’s time spent in the executing country (ECLI:ES:TC:2022:113). The applicant, who had been held in pre-trial detention in the United Kingdom (UK) for 1,320 days based on an EAW issued by Spain before being detained in Spain for a further 391 days, was eventually released and the proceedings were dismissed as his involvement in the facts under investigation had not been established.

In total, the applicant was held in pre-trial detention for more than 1,700 days, which exceeds the four-year limit set by Spanish law. His claim for compensation for undue imprisonment and malfunction of the judicial system was rejected by the lower courts. With regards to his detention in the UK, the courts ruled that its duration was due to factors beyond the control of the Spanish authorities. The Constitutional Court rejected these earlier rulings, arguing that the Spanish authorities cannot dissociate themselves from the effects caused by the execution of an EAW, and that the denial of compensation in this case would violate the right to effective judicial protection, enshrined in Article 24 of the Constitution.

ELECTRONIC MONITORING

AUSTRIA ■ The Higher Regional Court of Vienna, Austria, ruled that work from home can be considered a “suitable occupation” within the meaning of Section 156b of the Prison Act, which lists the conditions under which electronic monitoring can be applied (OLG Wien, 24.2.2022, 32 Bs 391/21s, published in JSt 4/2022).

This section specifies that which can be considered a “suitable occupation”, i.e., employment, education, childcare, community service or any other occupation supporting the individual’s reintegration. Only prisoners whose sentence (or remaining sentence) does not exceed 12 months and whose social environment can support their reintegration are eligible. In addition to having a suitable occupation, they must have suitable accommodation in Austria and income that supports both living expenses and health insurance.

The prison administration rejected a prisoner’s application for electronic monitoring, arguing that work carried out from home is not covered by the relevant section of the Prison Act. The applicant successfully appealed to the Higher Regional Court, which ruled that employment should be considered “suitable” if it engages the applicant in a fixed work structure. The mere fact that work is done at home does not make it unsuitable.

ROMANIA ■ The Romanian Government adopted a decision specifying the technical and organisational aspects of the pilot phase of the new electronic monitoring system (see our previous roundup), as well as the operationalisation of the corresponding information system (decision no. 1025/2022 dated 10 August 2022). Among other things, the decision contains useful details on the timeframe for the implementation of the pilot phase. The electronic monitoring system will first be implemented in the municipality of Bucharest and the counties of Iaşi, Mureş and Vrancea (2022–2023), before being extended to various administrative territorial units throughout the country (2024–2025).

Devices will be purchased by the Romanian police, while the communication services necessary for their operation will be purchased by the Special Telecommunications Service. The General Inspectorate of the Romanian police and the territorial police units will have their own staff, specially trained for supervision and intervention in the event of an alert.

HEALTH

SPAIN ■ In Spain, in response to the serious shortage of doctors in prison (58% of the positions are still vacant, representing 300 doctors), the General Secretariat of Penitentiary Institutions (SGIP) invited private healthcare institutions to offer their services in detention. In addition, the SGIP launched a telemedicine pilot project , consisting of medical consultations by telephone. A major prison officers’ union, alarmed by the situation, considered these measures to be ineffective and filed a complaint with the Ombudsperson.

MOLDOVA ■ In Moldova, the first session of the working group tasked with proposing policy changes in prison healthcare took place on 20 September 2022. This first session was devoted to the provision of medical services in public health system institutions (under the authority of the Ministry of Health) to prisoners benefiting from public health insurance such as minors, pregnant women, pensioners, people with disabilities. The aim of the working group is to implement the recommendations made by national (NPM), European (CoE) and international (UN) bodies. In a recent judgment, the ECtHR found that the provision of healthcare for a prisoner with serious health problems was inadequate (see Covosan v. the Republic of Moldova, no. 13472/18, 23 March 2022). Among other things, it pointed out that the medical staff’s lack of independence from the prison administration had a deterrent effect on the provision of care. Recognising the importance and complexity of the case, the CoE Committee of Ministers placed the case under enhanced supervision.

CZECH REPUBLIC ■ The Constitutional Court of the Czech Republic rejected as manifestly ill-founded a prisoner’s application whose request to have his sentence suspended on health grounds had been rejected by ordinary courts on the grounds that he could receive adequate treatment in detention. The ordinary courts based their decisions on reports provided by the prison administration, including the administration’s medical committee. The procedure and argumentation followed by the ordinary courts was found to be satisfactory by the Constitutional Court. This decision is a serious setback for prisoners’ health rights in the country. The Constitutional Court’s absence of critical assessment of the prison administration reports is surprising given the medical committee’s lack of independence and the persistent criticism by prisoners and civil society of the quality of medical care provided in prison.

ROMANIA ■ On 26 August 2022, the Romanian Ministry of Justice published a draft law on its website, subject to public debate, concerning the provision of medical assistance, treatment and care to persons deprived of liberty. The bill contains more than 140 articles and covers both the general aspects of medical assistance to persons deprived of liberty (e.g., primary care, dental care, specialised care, hospitalisation) and the specific aspects of healthcare in prison (e.g., medical assessment during quarantine and observation, medical assistance in case of transfer, medical assistance through hospitalisation in the infirmary, medical assistance during the execution of a disciplinary sanction with solitary confinement, taking of biological samples, forensic expertise needed to interrupt the execution of the sentence on medical grounds, etc.). A separate chapter is devoted to the supervision of prisoners with mental disorders. Once entered into force, the bill will repeal the Joint Order of the Minister of Justice and the Minister of Public Health no. 429/C/125/2012 regarding the provision of medical assistance to persons deprived of liberty in the custody of the National Penitentiary Administration.

JUVENILES

AUSTRIA ■ The Austrian Ombudsperson (Volksanwaltschaft) published a report on juveniles in prison in which she assessed their living conditions, addressed structural issues and recommended improvements – in particular in the areas of visits, education and detention regime. Regarding visits, the Ombudsperson found the visiting hours too restrictive and in violation of Section 94 of the Prison Act, which guarantees four visits per week, including one in the evening or during weekends. In most facilities, visits to children are only allowed during working days and in the morning, which makes it difficult for family members and friends to maintain contact. Regarding education, the Ombudsperson observed that apprenticeships started in prison could not be completed after release (which is a result of a sharp reduction in the length of sentences over the last decade) and recommended that juvenile detainees be allowed to receive education outside prison and continue their education after release. Regarding the detention regime, the Ombudsperson recommended introducing an open detention regime (Wohngruppenvollzug – with cells open from morning to evening, and detainees allowed to move freely in the unit and prepare meals in a shared kitchen) in all juvenile detention areas. So far, the Ministry of Justice has opposed this reform, arguing that such a measure would be difficult to implement because of architectural constraints, and that not all juveniles would be capable or willing to live in such conditions.

MONITORING BODIES

BELGIUM ■ The Belgian Central Prison Monitoring Council presented its 2021 annual report at a press conference on 5 September 2022. In addition to highlighting the squalid detention conditions and poor prison infrastructure, the Council noted with concern that the prison population increased in 2021 (from approximately 10,300 inmates in January to 10,800 in December). In the report, the Council made several recommendations to the prison administration and the Ministry of Justice, including the systematic publication of prison statistics, the establishment of a health crisis management policy (based on the lessons learned from the COVID-19 crisis), and the goal to address overcrowding through a decrease of the prison population and the improvement of detention conditions.

RUSSIA ■ On 28 September 2022 the Russian Public Chamber approved the new composition of the Public Monitoring Commissions (PMC, monitoring bodies visiting places of detention) in 43 regions of Russia. These commissions are now entirely composed of former law enforcement officers and representatives of government-affiliated NGOs. The Public Chamber rejected applications from independent journalists and prominent human rights defenders, such as Igor Kalyapin (founder of the Committee against torture), Svetlana Astrakhantseva and Valery Boshchev (director and co-head of the Moscow Helsinki Group respectively), and Ivan Melnikov (former head of the Moscow PMC). EPLN reported the situation to the Committee of Ministers of the Council of Europe and the UN Human Rights Committee.

NGOs

SPAIN ■ The Spanish NGO Association for Human Rights of Andalusia (APDHA) published a Guide to Life in Prison on its website. The guide is primarily addressed to prisoners and their families (especially the latter as prisoners have limited access to the internet). It uses clear language to present the rights and duties of imprisoned persons and provides tools to facilitate access to these rights.

In addition, APDHA supported the translation into Spanish of the ECtHR’s guide on prisoners’ rights. This will greatly improve access to ECtHR case-law for prisoners, lawyers, researchers, and more broadly prisoners’ rights defenders.

PRISON LAW

GREECE ■ In Greece, a draft of the new Penitentiary Code has been made publicly available on 27 September 2022, with to enable citizens and the civil society to comment on its content and suggest potential improvements before the Greek parliament’s discussion of the draft law on October 8.

The reform aims to align the Penitentiary Code with the consecutive amendments of relevant EU and domestic legislation and promote the harmonisation of the different stages of the criminal proceedings, including the execution of sentences, to the benefit of prisoners and their fundamental rights. The key proposed amendments to the Code concern: (a) the modernisation of the provisions related to detention conditions and the rights of prisoners, per the obligations stemming from EU law and ECtHR case law; (b) the separation of offenders into different prisons in accordance with the type and severity of their crimes; (c) the conditions for the transfer of prisoners into special prisons (agricultural prisons, etc.), the right to educational leave, and alternative measures for the execution of penalties; (d) the reintegration of prisoners, including professional reintegration, through the reinforcement of competent authorities; (e) the prohibition of discrimination toward prisoners, per the relevant domestic and EU legislation.

POLAND ■ In Poland, elements of the penitentiary system reform (called “Modern Prisons”) concerning healthcare, the use of the telephone in prison, prison work and electronic supervision came into force on 17 September 2022. The provision of health services to prisoners will be integrated into the public health insurance system, which is likely to result in longer delays for prisoners to obtain a consultation with a doctor or a specialist. In addition, prisoners will have to pay the costs of laboratory tests when they test positive for a psychoactive substance. Regarding the use of telephone by prisoners, a minimum of one conversation per week with an attorney and one with other persons (e.g., family members) was established. The Helsinki Foundation for Human Rights warned that there is a risk that this reform will reduce the number of calls to once a week, whereas telephone use in prison was previously more frequent. According to the new rules, pre-trial detainees are not allowed to contact anyone other than their lawyer by phone, except in “particularly justified cases” (e.g., when visits are impossible or difficult to carry out, or in the case of a life-threatening emergency). Furthermore, pre-authorisation by a competent judicial authority (i.e., a court or a prosecutor) is required to use a telephone. A demonstration took place in front of the Warsaw pre-trial detention centre to protest these changes and 7,500 people signed a petition asking the President to intervene. Regarding work, the amendments allow prisoners to work within the prison to pay their fines and to participate in emergency service missions (e.g., in the event of natural disasters). The amendments also allow penitentiary committees operating in the prison to issue permits allowing prisoners sentenced to less than four months to serve sentences under electronic supervision – a task previously carried out by courts. Prisoners with longer sentences will be able to spend the last six months of their sentence under the electronic supervision.

PRISONERS’ UNION

AUSTRIA ■ In Austria, the first Union for Prisoners’ Rights was established, following a ruling by the Lower Austria Regional Administrative Court that overruled the initial refusal of the municipal authorities to register the organisation (LVwG Niederösterreich, 2 August 2022, LVwG-AV-334/001). The authorities first argued that section 30 of the Prison Act prohibits business between prisoners and that the procedure for joining the union would involve commercial activities. The court held that the said section only prohibits business between inmates of the same institution and that, since the members would be detained in different prisons, the registration of the union is permitted. Furthermore, it stressed that a general ban on prisoners’ unions would violate Article 11 of the ECHR protecting freedom of assembly and association.

PRISONS IN WARTIME

RUSSIA ■ On 21 September 2022 EPLN & Russia Behind Bars (Русь Сидящая, RBB) called on six UN mechanisms to declare that the recruitment of Russian prisoners to serve in Ukraine in the ranks of the Wagner paramilitary company involves forced labour and arbitrary detention. The report describes in detail the system put in place by Wagner and provides legal analysis and quantitative data on the scale of the recruitment.

PRIVATE AND FAMILY LIFE

RUSSIA ■ Amendments to the Russian Penitentiary Code extending the right of prisoners under strict regime and held in disciplinary wards to make telephone calls have been submitted to the country’s lower house (State Duma). Currently, these prisoners are only allowed to make a phone call subject to the approval of the prison administration in “exceptional circumstances”, which is equivalent to a total ban on phone calls. In its Danilevich judgment, the ECtHR emphasised that these restrictions amount to “a disproportionate interference with [the] right to respect for … private and family life” (Danilevich v. Russia, no. 31469/08, 19 October 2021). Despite the absence of any reference to the court’s judgment in the explanatory material, the proposed amendments (if adopted) can be seen as a step towards implementing the Danilevich judgment. However, it is not clear why the authors of the amendments limit the number of telephone calls to one per year. Russian NGOs have criticised the amendments for their decorative character and their failure to ensure a proper reintegration of prisoners into social life.

PORTUGAL ■ In Portugal, a Decree-Law published on 8 September 2022 allows for the installation of fixed telephones in each cell (except in special security facilities), which is an improvement on the current system in which telephone calls can only be made from booths located in common areas. The Decree-law also increases the duration of telephone calls – allowing two calls of 15 minutes each (one to an authorised person, one to the prisoner’s lawyer), compared to five minutes per call previously. Finally, the reform also allows video calls (upon approval by the prison director) in specific situations, such as when prisoners’ family members or close relationships cannot visit them due to geographical distance or difficulties in reaching the prison premises. The reform will increase the privacy of prisoners’ conversations with their families and thus contribute to maintaining and strengthening family and emotional ties. This change will also have a positive effect on prison order as it will put an end to queues and long waiting times to access the common booth. The installed equipment will only work with pre-approved telephone numbers and within a period set by the prison administration. The equipment will be provided by the telephone operators and the cost of the calls will be supported by the prisoners – there is therefore no public spending involved.

SENTENCE ADJUSTMENT

CZECH REPUBLIC ■ The Constitutional Court of the Czech Republic ruled that ordinary courts considering applications from conditional release must give reasons for their decisions (ruling of 20 September 2022, case no. IV ÚS 1377/22). This judgment mainly concerns the criterion of the prisoner’s future integration in the community (the two other criteria being the time already served and the prisoner’s behaviour in detention). The Constitutional Court ruled that the assessment of the prisoners’ future integration should not be based solely on their criminal records but must also refer to tangible facts and provide convincing arguments.

RUSSIA ■ In Russia, amendments to the Criminal Code that came into force on 24 September 2022 increased the length of the mandatory prison sentence by up to two-thirds after which those convicted of particularly serious crimes can apply to have their prison sentence replaced by a lighter sentence of “compulsory labour”. While these amendments worsened the situation of convicts, the explanatory documents suggest that they were aimed at a gradual reintegration of prisoners convicted of serious offences, who should first be transferred to institutions with a more flexible regime and only then have their sentence replaced by a less severe one. In the opinion of the legislator, the amendments would also protect people sentenced to compulsory work from the negative impact and involvement in the criminal subculture of “criminally inclined recidivists”.

TORTURE

TORTURE ■ Russian courts continue to shield prison officers from criminal liability for torturing prisoners, despite recent amendments to the Russian Criminal Code criminalising torture by state officials (see our analysis of these amendments in our reports to the Committee of Ministers of the Council of Europe and the UN Human Rights Committee). On 6 September 2022, the Zabaykalskiy Regional Court replaced four-year imprisonment sentences with suspended sentences for two officers who had electrocuted prisoners in correctional colony no. 5 in Chita. On 27 September 2022, three prison officers who had severely beaten a prisoner in correctional colony no. 1 in Yaroslavl were sentenced to prison terms of up to three and a half years. The victim died one month after the beating.