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PRISONS IN EUROPE : DOMESTIC LEGAL NEWS
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6 APRIL 2023
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In this compilation, 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.
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The compilation covers 14 European Union member states as well as Ukraine, Moldova, the United Kingdom and Russia.
We welcome your feedback about how to make this compilation most useful to you.
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PRISON LEGAL NEWS OVERVIEW
DECEMBER 2022 ā FEBRUARY 2023
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READ MORE AFTER THE OVERVIEW
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ALTERNATIVES TO DETENTION ā In Greece, detailed conditions for community service as an alternative to imprisonment were introduced by ministerial decree, allowing for the practical application of the new scheme, which was introduced in the new Greek Criminal Code in 2019.
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DETENTION CONDITIONS ā In Bulgaria, an administrative court significantly extended the scope of protection offered to prisoners by expanding the number of elements of the prison environment that may constitute inhuman and degrading treatments, including passive smoking.
In France, the Supreme Administrative Court rejected a request for interim measures brought by the NGO International Prison Watch (OIP-SF) to improve detention conditions in a French Guiana prison. This decision, which is consistent with the Supreme Courtās previous case law, is an indication that there is no effective preventive remedy available for prisoners to put an end to inadequate detention conditions.
In Poland, the Deputy Minister of Justice informed the Commissioner for Human Rights that his proposal to add bras to the type of underwear that the Prison Service should provide to women inmates, when they do not have their own or theirs are unfit for use, has been positively assessed.
In Belgium, several mayors have ordered prison directors not to exceed the maximum capacity of their establishment and to abolish the practice of prisoners sleeping on mattresses on the floor. Also in Belgium, the Supreme Court declared that investigating courts can assess detention conditions in remand centres and order a transfer of the detainee to another facility if necessary.
In Hungary, a decree from the Ministry of Interior limits the type of electric devices prisoners can keep in their cells.
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EXTRADITION ā In Bulgaria, a regional court refused the extradition of a prisoner requested by the Russian Federation based on the risk that he could be exposed to torture and ill-treatment in Russia. The court’s decision refers to, among other things, a report on the situation of human rights and the rule of law in Russia prepared by the NGO Bulgarian Helsinki Committee.
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IMPRISONED FOREIGNERS ā In Hungary, a governmental decree introduces specific rules concerning the transfer of non-Hungarian prisoners to another country. Foreign detainees amount to 15 % of the total prison population in Hungary.
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NUTRITION ā In Austria, the Vienna Higher Regional Court declared that a prisonerās right to receive adequate quantities of food that meets nutritional standards and is served at times of the day generally customary for meals was violated in the case of a prisoner who received his dinner at 10:45 in the morning. The court based its decision on scientific facts about nutrition and practices of the retail and gastronomy sectors.
In Hungary, the sum allocated by the government to prison facilities to provide prisoners with food was increased as a result of the high inflation in the country. According to observers, while necessary, the raise remains insufficient to ensure that all prisoners are receiving food of sufficient quality three times a day, according to their needs.
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PRISON POLICY ā In Lithuania, the Prison Department and its subordinate institutions have been centralised into a single legal entity: the Prison Service. This reform should lead to the reduction of prison individual structural units by 40 % in prison facilities and by 55 % in management positions. Also in Lithuania, the new Code of the Execution of Sentences entered into force on 1 January 2023 and brought a number of positive changes to prisonersā rights in the area of private and family life, work and early release.
In Ukraine, the government adopted a strategy for penitentiary system reforms between 2022 and 2026 as well as an action plan for its implementation.
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PRISON STATISTICS ā In Moldova, the increasing use of the amnesty law passed in 2021 has not led to a decrease in prison overcrowding, which affects a third of the 18 prisons in the country. Upcoming statistics may show an even grimmer picture following the re-establishment, by an order of the Ministry of Justice, of the calculation of a prisonās capacity using a standard of 4 sq. m. per prisoner.
In Portugal, recent statistics show that the prison population, which had decreased during the COVID-19 pandemic, has returned to its pre-pandemic level with over 12,000 inmates registered December 2022.
In the Czech Republic, the Ministry of Justice has proposed an action plan aiming to replace custodial sentences with financial penalties for minor offences, with the objective to reduce the prison density ā one of the highest in the EU.
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PRISONS IN WARTIME ā In Russia, the recruitment of prisoners to wage war along Russian forces in Ukraine has been taken over by the Russian Ministry of Defence. Prior to this, prisoners were recruited by the private military company, Wagner. Prisoners deployed to Ukraine have suffered huge casualties (around 30,000, of which 9,000 have been killed).
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ALTERNATIVES TO DETENTION
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GREECE ā āIn Greece,community service, which had become inactive as an alternative to detention, was reintroduced in the new Criminal Code, which entered into force in July 2019. However, the ministerial decree required to regulate the practical aspects of the schemeās application was only enacted in December 2022. The decree constitutes a step forward, as it is the first time that community service is being regulated in a comprehensive manner within the Greek criminal justice system.
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Specifically, joint ministerial decision no. 56169/2022 of the Ministers of Finance, Labour and Social Affairs, Justice and Internal Affairs provides for the following: (A) An individual assessment of eligible prisoners is carried out through a personal interview with a social worker, taking into account the social background and information on the convicted person, as well as their personal, economic, and social characteristics in order to place them in the appropriate position. (B) The social worker who performed the individual assessment must select an appropriate type of activity and entity for the provision of the community service, taking into account, in particular, the convicted personās age, educational level, and skills, their health status, place of residence, and professional and family obligations. Their suggestion is then submitted to the competent prosecutor, who orders the commencement of the service. (C) An agreement for the provision of community service is to be signed between the convicted person and the entity where the community service will be provided. It mainly includes the scope and duration of the work, the obligations and rights of the convicted person, and the person appointed by the provider as responsible for supervising the provision of community service. Community service is provided by the convicted person without remuneration.
The provision of community service is supervised by a social worker. A registry for convicted persons for whom community service has been ordered as well as for entities who are eligible and willing to participate in the community service scheme is established, to facilitate placement.
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DETENTION CONDITIONS
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BULGARIA ā āIn a judgment issued on 13 December 2022, the Administrative Court of Stara Zagora, Bulgaria, significantly extended the scope of protection offered to prisoners by expanding the number of elements in the prison environment that may constitute inhuman and degrading treatment within the meaning of the Execution of Punishments and Pre-Trial Detention Act (EPPDA).
The applicant mentioned in particular that his cell was infested with bedbugs and cockroaches; that its walls were dilapidated and unhygienic, that he was not able to open his window; that there was no hot water in the entire ward; that he was not provided with enough detergent to clean his cell, the corridor and the bathroom; that there was no electricity in the bathroom after 22:30; that he was exposed to passive smoking as people smoked in the common corridor; and that he had did not have time enough to take a shower.
The court found that these elements, taken both cumulatively and separately, constituted inhuman and degrading treatments within the meaning of the EPPDA. In two separate orders addressed to the prison governor, the court requested that (A) within one month the conditions of the use of bathrooms are improved, that sufficient detergents are provided, that electricity is ensured in the cell bathroom and that smoking is prohibited in the common corridor; (B) within two months inmates can open the window in their cells, the condition of the cell walls is improved, measures against bedbugs and cockroaches are taken, and that hot water is provided in the ward.
The fact that passive smoking was considered an inhuman and degrading treatment is important because it sets a high standard, which, if maintained, can significantly improve detention conditions in Bulgaria.
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FRANCE ā āThe French Supreme Administrative Court (Conseil dāEtat) rejected a request for interim measures brought by the International Prison Watch (OIP-SF) to improve detention conditions in RĆ©mire-Montjoly (French Guiana). Before turning to the Supreme Court, OIP-SF had first filed a request before the Administrative Tribunal of French Guiana, indicating a list of measures to be taken to put an end to the violation of prisonersā rights (e.g. take measures against the proliferation of pests, provide meals meeting nutritional standards and improve the state of the prison kitchen, improve detention conditions in the juvenile section of the prison, increase staffing levels in order to improve access to healthcare, properly separate sanitary annexes from the rest of the cells to guarantee prisonersā right to privacy, etc.). The Administrative Tribunal rejected a major part of OIP-SFās request, which then appealed to the Supreme Court. The court rejected the request and argued that the measures outlined are of a structural nature and therefore cannot be ordered as interim measures. This decision, which is consistent with the Supreme Courtās previous case law, is an indication that there is no effective preventive remedy available for prisoners to put an end to inadequate detention conditions.
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POLAND ā In Poland, the Deputy Minister of Justice informed the Commissioner for Human Rights that his proposal to add bras to the type of underwear that the Prison Service should provide to women inmates when they do not have their own or theirs are unfit for use has been positively assessed. This issue was first identified in 2019 by the Commissioner for Human Rights, who noted that the lack of a legal requirement to provide a bra to women prisoners could lead to mental discomfort. More than three years later, the Commissioner for Human Rights urged the Ministry of Justice to act. In response, the Deputy Minister of Justice indicated that his services are currently working on an amendment to the relevant regulation.
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BELGIUM ā Faced with severe overcrowding in Belgian prisons, several mayors have ordered prison directors not to exceed the maximum capacity of their facilities. On 25 January 2023, the Ghent mayor ordered the abolition of the practice of prisoners sleeping on mattresses on the floor by 1 May 2023. This order came three months after the Ghent prison complaints committee condemned the prison administration in October 2022 for the case of a non-smoking prisoner who had been held in a cell with two smokers with less than three sq. m. of personal space, and had to sleep on the floor for 21 days. Despite numerous strikes, complaints and condemnation, the situation has not changed much.
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Also in Belgium, the Supreme Court (Cour de Cassation) declared in a judgment dated 11 January 2023 that investigating courts (chambres dāinstruction) can assess detention conditions in a remand centre, and, if these conditions amount to inhuman or degrading treatment, the court may order the transfer of the defendant to another prison. In this case, the applicant, who was detained on remand in Saint-Gilles prison, criticized the investigating court of appeal (chambre des mises en accusation) for declaring itself incompetent to examine his request to be transferred from this facility, where he considered the detention conditions contrary to Article 3 ECHR. He further argued that the investigating court should have verified that the detention conditions were appropriate, as part of the review of the legality of the arrest warrant. The Supreme Court accepted this argument and declared that when it appears that the arrest warrant orders the accused person to be imprisoned in a prison where the conditions of accommodation constitute inhuman or degrading treatment, the investigating courts are competent to order the rectification of the arrest warrant by imposing that the pre-trial detention be continued in another establishment.
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HUNGARY ā In Hungary, decree 6/2023 of the Minister of Interior entered into force on 23 February 2023. The decree limits the type of electric devices prisoners can keep in their cells. The prison governor can ban hair dryers with more than 750 watts, electric kettles with more than 500 watts, hair straighteners, and televisions wider than 24ā. While the (non-stated) aim of the decree is probably to limit energy usage by limiting the use of devices requiring high electricity consumption, it has negative side-effects as many prisoners use hair dryers to counter the cold, especially following the governmentās decision not to heat prisons above 18 degrees Celsius (see our previous report).
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DETENTION REGIMES
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SPAIN ā āThe Criminal Chamber of the Spanish Supreme Court declared in a judgment issued on 15 December 2022 that appeals lodged by the Public Prosecutor against the decision to place prisoners convicted of serious crimes in the open regime have suspensive effect (ECLI: ES: TS: 2022: 4660). In doing so, the Supreme Court unifies the judiciaryās approach in this matter.
The case originated in a decision by the Secretariat for Criminal Measures, Reinsertion and Victim Care of the Department of Justice of Catalonia to place a prisoner in open regime who had been sentenced to 20 years and one dayās imprisonment for murder and who had not yet served half of his prison sentence, in violation of the requirements set up in art. 36.2 of the Criminal Code in force at the time. The Public Prosecutor appealed the decision adopted by the Department of Justice of Catalonia to the Penitentiary Surveillance Judge and requested that the transfer to open regime be suspended. The appeal reached the Supreme Court after going through several judicial instances.
The Supreme Courtās decision is important because it concludes that the suspensive effect is applicable both to appeals against judicial decisions adopted by the Penitentiary Surveillance Judge and subsequent judicial instances and the initial decision of the prison administration to transfer a prisoner to an open prison regime. It reached such a conclusion by interpreting the fifth additional provision, paragraph 5 of the Law on the Judiciary. The Supreme Court argued that the term ārecurso de apelaciĆ³nā thereby used is to be understood to also encompass the appeals filed against the administrative resolution which kicks-off inmatesā transfers to open regime.
The Court also stated that such appeals with suspensive effect must be dealt with as a matter of priority and urgency in view of their impact on prisonersā situations, who cannot be transferred to the open regime until the competent court makes a decision.
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LITHUANIA ā A new halfway house for convicted persons was established as a special structural unit within Å iauliai prison, Lithuania, in February 2023. The main objective of halfway houses is to ensure the continuity of social reintegration of convicted persons, offering dedicated activities (employment, education, studies) and intensively preparing prisoners for release. Convicted persons placed in halfway houses have unrestricted access to their money and must provide for their daily needs (food, clothing, etc). On weekends, they can go out, return home and visit their relatives. The Å iauliai halfway house has 20 places for both men and women. It is the sixth institution of its kind in Lithuania.
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This detention regime is characterised by extreme isolation and deprivation of most forms of interaction with other people and was designed to prevent any possible contact between detainees and their criminal organisations still active outside the prison.
Mr Cospito was condemned to this detention regime on 5 May 2022, and on 20 October of the same year started a hunger strike that resonated with the public and brought national awareness to both his personal case and the legal issues presented by article 41-bis.
The case reached international relevance with Amnesty International denouncing the 41-bis regime as inhuman and degrading treatment and in direct violation of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the āNelson Mandela Rulesā), as well as the actual health risk posed to Alfredo Cospitoās life by the ongoing hunger strike. The issue had already caused the Italian Minister of Justice to formally ask the National Bioethics Committee if Cospito could be forcefully fed to preserve his physical integrity, to which the committee answered negatively.
On the day following the Supreme Court judgment rejecting Mr Cospitoās application against the 41-bis regime, his lawyer submitted a request of intervention to the United Nations Human Rights Committee, denouncing the systematic violations of basic human rights under the regime. The Human Rights Committee directly requested the Italian government to respect international standards, notably articles 7 (prohibition of torture, cruel, inhuman or degrading punishment) and 10 (duty to treat anyone deprived of liberty to with dignity and humanity) of the International Covenant on Civil and Political Rights.
At the same time, the legal foundation of the recourse to 41-bis in Mr Cospitoās case has been highly debated, particularly whether the risk that he would be involved in criminal activities while in prison has been proven in this case. According to Mr Cospitoās lawyer, the judges had wrongly derived an increased risk of criminal activity merely from Mr Cospitoās apical role inside his organisation and his general reputation in the anarchic movement, without any definitive, material evidence that would support such interpretation.
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EXTRADITION
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BULGARIA ā āOn 2 December 2022, the Regional Court of Burgas, Bulgaria, refused the extradition of a prisoner who was requested by the Russian Federation, based on the risk that he could be exposed to torture and ill-treatment in Russia. The courtās decision mentions, among other things, a report on the situation of human rights and the rule of law in Russia prepared by the NGO Bulgarian Helsinki Committee (BHC) at the request of the court.
Five similar decisions have been made since August 2022 ā as requests for extradition from Russia have become more frequent following the beginning of the war in Ukraine (some of these requests target individuals who have publicly condemned the Russian invasion). In all these cases, the courts asked for reports from the BHC. This fifth judgment consolidates the Bulgarian courtsā approach to extradition requests made by Russia.
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HEALTH
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MOLDOVA ā āThe Moldovan government submitted to the Committee of Ministers of the CoE an action plan aiming to implement the Cosovan v. Moldova judgment in which the ECtHR identified serious shortcomings in the provision of healthcare services in prison. Among other things, the document refers to an action plan prepared by the Ministry of Justice with detailed steps to be taken in 2023, including: measures to increase staffing in medical units in prison (salary increase, possibility to cumulate vacant medical staff positions, establishment of minimal standards for medical staff operating in prison); the accreditation of the penitentiary hospital prison medical units to ensure the delivery of specialised medical care; the alignment of departmental health policies with national policies, including prisoners in policy documents at a national level; the digitalisation of medical documentation, connecting the penitentiary system to the national medical record systems; expanding the availability of dental medical services for prisoners by increasing funding and adjusting the regulatory framework.
Following the adoption of the action plan, order no. 343 of the Ministry of Justice on the organisation of medical assistance in prison was adopted on 29 December 2022. This order, which aims to improve the provision of healthcare to prisoners, introduces the obligation to provide nursing services, adequate nutrition and dietary food in accordance with medical protocols, and contains provisions on medical ethics to ensure the confidentiality of medical information.
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PORTUGAL ā āIn February 2023, the Portuguese government set up a working group in charge of preparing an operational plan for health in the Portuguese prison system for the period 2023ā2030. The operational plan aims to strengthen the provision of healthcare in criminal detention centres (prisons, centres for juveniles, and units for the treatment of persons that lack capacity due to mental illness/disorders), including improved epidemiological surveillance, health promotion and disease prevention activities, ensuring continuity of care, proposing organisational measures within the National Health Service and the penitentiary system, and budgeting the necessary financial and human resources. In Portugal, prison healthcare is the joint responsibility of the Ministries of Health and Justice. According to recently published data, Portuguese prisons are severely understaffed, with a total of 22 doctors and 186 nurses for 11,588 inmates ā on average one doctor for every 520 inmates and one nurse for every 67 inmates. The Independent Union of Doctors has also recently alerted the authorities of the āextraordinary seriousā situation of the prison healthcare system in the area of psychiatry.
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HUNGARY ā āIn Hungary, decree 6/2023 of the Minister of Interior entered into force on 23 February 2023. The decree introduces āhome care custodyā for seriously ill detainees. If found to be eligible by the prison doctor, prisoners with severe chronic illnesses requiring daily assistance can be released if they have relatives willing to take care of them at home. Prisoners placed in āhome care custodyā remain under the oversight of the prison administration by means of electronic monitoring if the prisonersā health allows for it. According to the Hungarian Helsinki Committee, this is a welcome addition to the law, but they argue that the state-owned social institutions should also be allowed to host prisoners in this situation ā in addition to individuals and NGOs.
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IMPRISONED FOREIGNERS
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HUNGARY ā āIn Hungary, the governmental decree 3/2023 on the application of the Prison Act entered into force on 13 January 2023, introducing specific rules concerning the transfer of non-Hungarian convicted prisoners to another country. Upon request of the prisoners concerned, and with the authorisation of the Ministry of Justice, the National Prison Administration may suspend the execution of the prison sentence and allow their transfer to another country if certain conditions are met. Conversely, the suspension of the execution of the prison sentence and the transfer cannot take place if the sentence the prisoner is serving was pronounced for the commission of serious crimes; if there is another criminal procedure pending against the prisoner in Hungary or if the prisoner has been condemned to a custodial sentence in another case; if the remainder of the custodial sentence to be served is above five years or below the minimum sentence for a given crime. As of 31 December 2022, 15 % of the Hungarian prison population were foreigners (2,893 prisoners out of a total prison population of ca. 19,000).
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LGBTQIA+
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LIFE SENTENCES
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MOLDOVA ā āThe Moldovan Ombudsperson adopted a special report on a hunger strike launched by 28 prisoners serving life sentences in Rezina prison between 14 November and 9 December 2022. They complained chiefly about unjustifiable delays in the examination of their request for amnesty and about the insufficient quality of the food they are served. The Ombudsperson found a series of violations of the national and international human rights legal framework concerning the delays in the examination of their application for amnesty and the lack of special diet served for prisoners with medical conditions and made a series of recommendations in this respect to the authorities.
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NUTRITION
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AUSTRIA ā āThe Vienna Higher Regional Court in Austria declared that a prisonerās right to receive āadequate quantities of food, meeting nutritional standards, tasty and served at times of the day generally customary for mealsā (enshrined in section 38 of the Prison Act) was violated in the case of a prisoner who had received his dinner at 10:45 in the morning (OLG Wien, 19.09.2022, 32 Bs 212/22v, published on 7 December 2022).
The applicant complained that the food he received, which included a piece of meat, no longer met nutritional standards after being kept in his cell (which did not have a refrigerator) for over eight hours. He argued that selling or serving this type of food kept at room temperature for over eight hours is strictly forbidden in retail and gastronomy.
The Higher Regional Court argued that the first instance courtās assessment that the food served was still safe for consumption contradicted scientific nutrition facts, which constitute the basis for the prohibition to sell such food in retail and gastronomy.
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HUNGARY ā āIn January 2023, in view of the high inflation in the country, the Hungarian National Prison Administration increased the amount of money allocated to prison facilities for providing food to prisoners. This daily sum ranges from 2.50 EUR for a non-working adult prisoner (up from 1.35 EUR in 2022) to 4.20 EUR for a detained breastfeeding mother (up from 1.95 EUR in 2022 ā this sum rises with the number of children being breastfed).
According to Hungarian law, meals shall be provided for detainees by the penitentiaries at least three times a day, including one hot meal. The law also sets forth the overall energy content of the daily menu, which differs from inmate to inmate depending on whether the prisoner is working and on health-related conditions (e.g., special diet or pregnancy). The penitentiary prepares the meals, and the state covers the costs, based on the National Prison Administrationās decision on how much money is allocated for a daily menu per inmate (which also depends on prisonersā situation ā age, working situation, special diet, pregnancy, health issues).
It is also up to the penitentiary to purchase all the ingredients. While one assumes that the penitentiary buys ingredients that are significantly below average consumer prices, it would likely be impossible for an everyday consumer to prepare three daily meals for one person on a budget of only about 4.00 EUR. Therefore, it seems necessary for the allocated sum to be further increased.
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PRE-TRIAL DETENTION
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AUSTRIAāā āThe Austrian Constitutional Court repealed as unconstitutional a provision of the Code of Criminal Procedure governing the imposition of pre-trial detention for felonies punished by a mandatory minimum sentence of 10 years (VfGH, G 53/2022-17, dated 1 December 2022). The imposition of pre-trial detention in such cases followed the opposite reasoning to that for other offences.
Pursuant to section 173 of the Code of Criminal Procedure, the imposition of pre-trial detention generally requires (A) a request by the public prosecutor, (B) a strong suspicion that a criminal offence has been committed by the accused person, (C) the formal interrogation of the accused person, and (D) that one of the following risks constituting a valid ground (HaftgrĆ¼nde) for pre-trial detention might materialise: risk of flight; risk of influencing witnesses or obstructing investigations; and risk of committing further offences.
The repealed provision stated that pre-trial detention must be imposed in all cases involving a felony with a mandatory minimum sentence of ten years, unless there are reasons to believe that the materialisation of all these risks can be excluded (bedingt obligatorische Untersuchungshaft).
The Constitutional Court found that this provision violated the fundamental right to personal freedom (PersFrSchG) because it led to the imposition of pre-trial detention not when one of the reasons was present, but when all reasons could not be excluded.
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PRISON POLICY
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LITHUANIA ā āIn Lithuania, a series of laws (including the new version of the Law on the Activities of Correctional Officers, renamed the Law on the System of Execution of Sentences adopted on 28 June 2022) have entered into force on 1 January 2023. As a result of these laws, the Prison Department and its subordinate institutions have been reorganised into a single legal entity ā the Prison Service. According to the Ministry of Justice, which initiated the process, the centralisation of sentence execution should optimise the available human, financial and material resources, ensure a more uniform and efficient management of the system, and improve the reintegration of convicted persons. The plans foresee a reduction in the number of individual structural prison units (e.g., administration or digital monitoring units) by 40 % and the number of management positions by up to 55 %. The centralisation of tasks would also diminish the number of prison officers involved in administrative tasks (from one third currently to one fifth).
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Also in Lithuania, the new Code of the Execution of Sentences that came into force on 1 January 2023 brought a number of positive changes to prisonersā rights. First, when it comes to prisonersā private and family life, the new code grants prisoners a right to an unrestricted number of meetings with their children who are minors. It also increases the number of allowed calls (unlimited for prisoners in the lenient regime serving their sentences in semi-open institutions, four calls per week for prisoners in closed and semi-open correctional institutions).
The new code introduces changes in the area of work by setting the conditions under which self-employment and volunteering can be equated to being employed, with the result that people involved in these activities will not be required to engage in prison work activities.
Concerning detention regimes, evaluation criteria for the transfer of prisoners from a detention regime to another have been updated. The criteria to transfer a prisoner from a stricter regime group to a lighter regime group have been lowered, and new criteria to transfer a prisoner from an open-type to a semi-closed facility have been established.
Lastly, while under the previous legal framework prisoners could be released on parole six months before the date on which theyād be eligible for parole if they agreed to be placed under electronic monitoring, the new code extends this period to nine months (for more on this reform, see our previous report).
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However, the recommendations to improve the draft strategy, which were provided to the Ministry of Justice by a Commission of Experts consisting of representatives of the EU delegation to Ukraine, the CoE, EPLN and the Probation Project “Norwegian Rule of Law Advisers to Ukraine”, were not considered when the document was adopted. In particular, the commission recommended to : (A) amend the regulatory framework for the involvement of special purpose units in penitentiary institutions in accordance with recommendations of the CPT and civil society organisations; (B) end the practice of appointing individual prisoners as “on-duty” officers, responsible for supervising other prisoners; (C) incorporate statistical indicators of the results of the investigation into cases of ill-treatment and torture to assess the results of the fight against ill-treatment; (D) establish a clear plan for the transfer of responsibility for prison healthcare from the Ministry of Justice to the Ministry of Health.
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Thus, the strategy has a few serious omissions that call into question the successful reform of Ukraineās prison system necessary to bring it in line with international standards. Additionally, the operational plan for the strategyās implementation envisages several measures that require additional budgetary funding and to be implemented. Such measures are subject to adjustment after the adoption of the law on Ukraineās state budget for the respective year, taking into account the actual budgetary capacity. This implies that the guarantees of additional funding for this reform are absent, which poses serious risks to its efficient implementation.
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PRISON STATISTICS
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PORTUGAL ā Recent data released by the Portuguese Directorate General for Reintegration and Prison Services show that the prison population, which had decreased during the COVID-19 pandemic, has returned to its pre-pandemic level. There were 12,198 prisoners in the country at the end of 2022, a 7 % increase compared to the same period in 2021, when the inmate population totalled 11,388. Over 1,500 inmates were released in 2020 due to the exceptional public health measures under the COVID-19 pandemic, causing a temporary drop in the prison population of the country.
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CZECH REPUBLIC ā In the Czech Republic, the government’s National Economic Council called for a change in the countryās sentencing practices. Czech courts very often pronounce custodial prison sentences, and rarely financial penalties, even for minor offences. As a result, the country has one of the highest imprisonment rates in the EU (185 prisoners per 100,000 inhabitants), with important financial implications (the average financial cost for a prisoner is CZK 1,800 per day ā approximately 75.60 EUR per day). Some Czech prisons are also heavily overcrowded.
Accordingly, the Ministry of Justice drafted an action plan to amend the Criminal Code, which would constrain courts to impose a financial penalty on first-time offenders who have committed less serious infractions, mainly of economic nature and encroaching on property rights. Such amendments should help reduce the prison population, ease overcrowding in overpopulated facilities, improve detention conditions for prisoners (with greater availability to reintegration programmes and other activities), and result in significant savings for the Ministry of Justice.
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PRISONS IN WARTIME
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RUSSIA ā āIn Russia, the recruitment of prisoners to wage war alongside Russian forces in Ukraine, previously carried out by the Wagner private military company, has been taken over by the Russian Ministry of Defence since December 2022. Wagnerās recruiters have nevertheless continued recruiting in correctional colonies. According to recent reports, the recruitment campaign was extended to prisoners from the occupied Ukrainian region of Kherson who were forcefully transferred to Russia in NovemberāDecember 2022.
Prisoners recruited by the Wagner group (up to 40,000 individuals out of a total of 50,000 men deployed by Wagner in Ukraine) are often used to conduct first wave attacks, according to Ukrainian intelligence, and suffer huge casualties. In February 2023, the United States Government estimated the Wagner Groupās casualties to be around 30,000 people, including 9,000 killed. Approximately half were killed after mid-December 2022 and 90 % of those killed were recruited prisoners.
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PRIVATE AND FAMILY LIFE
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LITHUANIA ā āOn 23 December 2022, the Lithuanian Parliament adopted amendments to the Code on the Execution of Sentences and the Law on the Enforcement of Detention on Remand, establishing the procedure and conditions for the application of restrictions on the prisonersā rights to communicate with other persons āin order to prevent criminal offences and protect the rights and freedoms of other personsā. It aims to prevent the commission of offences by prisoners when exercising their right to correspondence, visits, phone calls, during prison leave, or when interacting with other prisoners.
The amendments, which came into force on 1 January 2023, allow the director of the correctional institution to temporarily (up to three months) restrict prisonersā rights to receive and send letters and items and receive visits and phone calls. The director can also limit prisonersā contact with other prisoners and suspend prisonersā rights to go on prison leave. A prisonerās right to communicate with their relatives would be limited only when other preventive measures have proven inefficient and only for a maximum period of one month. When imposing such measures, prison directors shall specify the measures applied, the reasons, the duration and other circumstances justifying the application of such measures. The renewal of these measures can only be ordered by a judge.
Prisonersā rights to communicate with their lawyers or with state and local institutions as well as international organisations cannot be restricted (see also our previous report).
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PROCEDURAL RIGHTS
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GERMANY ā āThe German Federal Constitutional Court (FCC) rejected an application for interim measure as inadmissible for not meeting procedural standards. The application was filed by a prisoner on whom disciplinary measures (upheld by the District Court and the Higher District Court) had been imposed. The FCC stated that the reasoning and documentation in support of the application had to be of the same quality as in the main proceedings. In this case, the FCC argued that the application had not been sufficiently reasoned and had not been supported by appropriate documentation, for example, the prison administration’s written justification for the imposition of a disciplinary sanction. This justification had only been given to the prisoner orally, but it was included in the District Court’s decision confirming the disciplinary sanction. According to the FCC, the applicant should have requested access to the prison or courtās files and developed his argument in greater detail. His claim that he did not have sufficient time to respond to a statement of the stateās Ministry of Justice was rejected because he should have asked the court for additional time by phone or fax, and not by email. Additionally, he should have stated the arguments he would have put forward in his application to the FCC, if he had had enough time.
These standards, as defined by the FCC, are very demanding. It remains unclear whether providing evidence of the applicantās request to have access to the files or the fax machine is necessary, as such requests are often not granted.
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BULGARIA ā āThe Administrative Court of Stara Zagora, Bulgaria, awarded a very low compensation for relatively serious violations of a prisonerās rights, after being held in inadequate conditions. The applicant had been detained in the Stara Zagora remand detention centre for a period of three months. The cell in which he was placed was overcrowded: he had a living space of less than 4 sq. m. throughout his detention and less than 2.5 sq. m. during extended periods when the cell was inhabited by four inmates, and for 14 days the claimant had to sleep on the floor. There was no toilet and the inmates had to relieve themselves in a bucket in front of the other detainees. There was no access to daylight and the ventilation was poor.
The court found a violation of article 3 of the Execution of Punishments and Pre-Trial Detention Act (EPPDA), which prohibits torture and inhuman and degrading treatment in prisons, and awarded compensation of 720 BGN (370 EUR). This is far less than the typical compensation awarded by the ECtHR for similar circumstances ā the applicant thus remains a victim of a violation of article 3 of the ECHR.
This judgment contributes to the consolidation of the jurisprudence of the Bulgarian administrative courts in awarding inadequate compensation, thus rendering the recently introduced compensatory remedy ineffective.
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GREECE ā āIn Greece, following the adoption of a revised penitentiary code at the end of 2022 that was introduced with the express aim to better align Greek legislation with European standards, the Prosecutorās Office of the Supreme Civil and Criminal Court (Areios Pagos) issued guidelines, by way of circular, on the interpretation of the law, directed at prosecutors who act as supervising authorities in prisons and/or as members of the Court for the Execution of Sentences (competent to adjudicate complaints against general detention conditions).
Circular 1/2023 was issued in response to the ECtHR judgement in Torosian v. Greece and aims to provide guidance on the handling of cases related to violence and abuse against prisoners and other detainees, perpetrated by state employees (chiefly police or correctional officers). The circular reiterates the principles established in ECtHR case law regarding the procedure for the investigation of alleged incidents of torture, inhuman and degrading treatment or punishment, and underscores the need for a thorough, effective, prompt and impartial investigation to ensure that the procedural requirements tied to Article 3 ECHR are not violated. The circular establishes concrete steps for prosecutors to take as soon as a relevant complaint reaches them. Specifically, they need to ensure that (A) the complaint is not investigated at any point by police or correctional officers but only by the competent prosecutor (so as to ensure impartiality); (B) the preliminary investigation of the incident begins immediately and concludes āvery speedilyā (referencing article 243 (2) of the Code of Criminal Procedure which stipulates the conclusion of the preliminary investigation within 6 months); (C) in cases where the alleged ill-treatment has led to physical injury, the examination of the prisoner by a medical examiner must be conducted without undue delay, and if possible within the same day as the incident/report; (D) in the event a complaint is unsuccessful, the prosecutor should exercise great caution when deciding whether to order the prisoner to pay court expenses. The latter practice has been criticized by the ECtHR as being potentially punitive.
Circular 3/2023 concerns the interpretation and application of newly introduced Article 6A of the Penitentiary Code, which establishes a new remedy to address prisonersā complaints in relation to general detention conditions. The Prosecutorās Office observed that the rights of prisoners are progressively regulated by international law, in particular the ECHR, and suggested that the ratio of the new provision is to fill a lacuna in Greek law that has led to an excessive number of applications before the ECtHR and many unfavourable judgements, which remain largely unexecuted. It then proceeded to remind prosecutors who may participate in the composition of the Court for the Execution of Sentences of their role in ensuring a fair trial, by making sure that their opinions are appropriately reasoned, in accordance with the principles and standards established in ECtHR case law on Article 3. To facilitate this process, an abridged version of the relevant ECtHR jurisprudence was annexed to the Circular.
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RESTRAINTS
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GERMANY ā āThe German Federal Constitutional Court (FCC) ruled that handcuffing or shackling prisoners to their hospital beds in civilian hospitals, without taking into account their personal circumstances, violates their general personality rights (Allgemeines Persƶnlichkeitsrecht) enshrined in Article 2 para. 1 read in conjunction with Article 1 para. 1 of the German Constitution. The prisoner had been taken to a civilian hospital for a surgical operation and was handcuffed or shackled to a bedpost during his transfer to the hospital and while in the hospital. After his operation, he was allowed to walk in the hospital park while handcuffed and accompanied by uniformed and armed prison officers. The prison administration based its decision for these security measures on the prisonerās flight risk and on a general order requiring all of the facilityās prisoners to be restrained, handcuffed and be accompanied by uniformed and armed prison staff outside the prison, unless, at the date the order was adopted, that they had benefited from prior unrestrained prison leave. In its ruling, the FCC referred explicitly to ECtHR case-law, the European prison rules, and CPT standards. The court referred the case back to the Sentence Enforcement Chamber (Strafvollstreckungskammer) of the competent Regional Court (Landgericht).
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The German Federal Constitutional Court (FCC) also dismissed an application as inadmissible for failing to comply with procedural standards. It was filed by a prisoner who had been handcuffed and accompanied by uniformed prison officers on prison leave to attend a church community meeting. The applicant challenged the prison administrationās decision that he could only attend the church meeting while being handcuffed and accompanied by officers. His requests for interim measures (including before the FCC) were unsuccessful. The FCC rejected his application because he had not provided additional information on his case, especially on his ongoing interest in such a decision (e.g., the risk that the prison administration might make a similar decision in the future). The FCC recalled that it is the applicantās duty to inform and argue in cases after such an event took place (or not). In this case the prison leave took place, and the restraints were lifted during the visit at the church community. In its decision, the FCC gave further details on the procedural standards to be met ā which might be an indication that a similar application could be successful, provided the above-mentioned procedural criteria are met.
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SENTENCES ADJUSTMENT
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UNITED KINGDOM ā āOn 16 December 2022, the Administrative Court of the High Court of England and Wales, in the United Kingdom, issued a judgment clarifying the circumstances under which the Secretary of State for Justice can make use of their discretionary power to refer the cases of certain determinate sentence prisoners to the Parole Board who would otherwise be eligible for automatic release on their conditional release date (āpower to detainā) if they consider the person to pose a significant risk of serious harm to the public (R (Simpson) v. Secretary of State for Justice, [2022] EWHC 3181 (Admin)). The effect of a referral to the Parole Board is that the prisoner is not released until the Parole Board is satisfied that it is no longer necessary for the protection of the public for them to be confined or they reach the end of their sentence. This prerogative was inserted into the Criminal Justice Act by the Police, Crime, Sentencing and Courts Act 2022, effective from 28 April 2022. In its judgment, Abedin v. the United Kingdom, the ECtHR decided that rules to extend the release dates of prisoners serving determinate sentences do not breach article 5 ECHR. The High Courtās judgement makes it clear that such decisions must be applied very carefully and will be subject to rigorous oversight by the courts.
The prisoner in this case was serving a 10-year determinate sentence having been convicted of causing or allowing her baby to sustain serious injury contrary to section 5 of the Domestic Violence, Crime and Victims Act. The Secretary of Stateās decision to refer to the Parole Board was made and communicated to the prisoner the day before her conditional release date.
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The decision was challenged on four grounds. The first was a challenge to the timing of the decision, which was issued so close to the original release date. Permission was refused on the basis that the statute is silent on the issue of timing and there is nothing to prevent the notification being served at any time up to the original release date, and the chronology did not indicate any unreasonable delay.
The second challenge was whether there is a requirement for a material change in circumstances and, if so, whether there had been such a change in this case. While the court did not accept that the power to detain can only be exercised where there has been a material change in circumstances, it observed that the requirement that the power is only exercisable āon reasonable groundsā commands that the grounds that are relied on in that regard must be identifiable and capable of scrutiny. On the facts of this case, all professional assessments concluded that the prisoner posed a medium risk of harm, and the secretary of state did not have reasonable grounds to conclude that the risk was significant.
Given these findings, the court did not need to examine the third point of challenge, being a rationality challenge to the decision also advanced by the prisoner.
The final point of challenge was that the Secretary of State did not have good reason to depart from the framework policy document that he had issued, requiring a test of dangerousness and imminence of risk to be carried out. While the Secretary of State accepted that these criteria were not met in this case, he argued that the case was exceptional due to the possible severity of harm if the risk did materialise. The court concluded that the requirement for new information in the policy referred to information indicating an increase in risk since the time of sentence. The facts of this case had established that there was no such new information and the risk identified by the Secretary of State was, at its highest, the same as at the time of sentence. Finally, the serious nature of the original offence and the notoriety of the prisoner were not grounds to depart from the policy. The power was specifically introduced to address prisoners convicted of the most serious offences and so the severity of harm that might occur is not reason to disapply the policy criteria.
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The decision is an important check on the exercise of this new āpower to detainā. It was clear from the parliamentary debate and the white paper that the power was intended to be an exceptional one used in cases where there were new developments raising fresh concerns about dangerousness after the sentence was imposed. The need for these to be fresh concerns is evident from the fact that the original sentencing court did not make a finding of dangerousness at the time the sentence was imposed. The āpower to detainā policy is quite explicit that the power must be exercised cautiously otherwise it has the potential to catch large numbers of prisoners.
The facts of this case appear to show a complete disregard on the part of the Secretary of State for the advice received from his own professionals, including the most senior members of the probation service, who had warned that the case did not meet the criteria for the power to be exercised. The decisions appear to have been motivated more by concerns about notoriety and public pressure than by genuine issues of risk. Given that the statute now gives the executive the power to alter sentences imposed by the criminal courts, effectively turning standard determinate sentences into extended sentences, it is right that the court has imposed a higher hurdle than simple rationality in relation to the exercise of this power.
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TORTURE AND ILL-TREATMENT
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MOLDOVA ā āA report prepared by the Moldovan NGO Promo-LEX, released in December 2022, shows that ill-treatment remains an acute problem in Moldovan prisons and identifies causes for the reduced efficiency of the mechanism for preventing and combating ill-treatment in prison. Following the release of the report, the Ministry of Justice declared that its recommendation will be included in the action plan of the National Penitentiary Administration and organised a workshop on āPrevention of ill-treatment in penitentiary institutionsā that was attended by the prison administration management, the directors of the facilities mentioned in the report, representatives of the Ombudsperson, and representatives of Promo-LEX.
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POLAND ā āThe Polish NPM alerted authorities about possible cases of torture, inhuman and degrading treatment in Barczewo prison. A first report on the NPMās visit to this facility, carried out in October 2022, mentions a complaint received by the monitoring team whereby a prisoner, detained under a special regime for dangerous detainees, alleged he was transferred to an unmonitored medical room and subjected to torture, including waterboarding. CCTV footage shows the prisoner wearing wet clothes when he was transferred back to his cell after the incident. Two other complaints concerning the use of violence by prison guards in Barczewo prison were filed with the NPM, who carried out a second ad hoc visit in the prison in January 2023. The NPM informed the Public Prosecution Office about possible commission of a crime by prison officers. During a debate on NPMās information about possible acts of torture in Barczewo prison held in the Human Rights Committee at the Polish Senate, the prison administration and the Ministry of Justice denied NPMās allegations and accused the members of NPM of being biased.
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RUSSIA ā āA district court in Irkutsk, Russia, held the first hearing in a criminal case involving the mass torture of prisoners in Irkustk prison no.1. The case comprises at least 60 instances of torture, including sexual violence, perpetrated by four so-called ādevelopersā ā i.e., prisoners who tortured other prisoners on the instructions of the administration. There were at least ten victims, but the exact number is unknown as some of them were deprived of their procedural status during the investigation. The victims were prisoners who had been transferred from Angarsk correctional colony no. 15 following a riot that took place in the facility in April 2020. They were forced to confess to having organized the said riot and set fire to the correctional colony, or to give evidence demanded by the investigation. The victims were raped and tortured with electricity. The Angarsk case is one of the largest torture cases in the Russian penal institutions. EPLN partners in Russia have provided legal assistance to the victims and their relatives throughout different stages of the proceedings.
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A special thank you to our members and associate partners for jointly drafting this compilation!
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This compilation is funded by the European Union and the Robert Carr Fund. Views and opinions expressed are those of the authors only and do not necessarily reflect those of the European Union, the European Commission or the Robert Carr Fund. Neither the European Union, the European Commission nor the Robert Carr Fund can be held responsible for them.
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