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15 NOVEMBER 2022
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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.
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We welcome your feedback about how to make this newsletter most useful to you.
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PRISON LEGAL NEWS OVERVIEW
APRIL-JULY 2022
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COUNCIL OF EUROPE ■ The Russian Parliament adopted a law allowing the Russian authorities not to execute judgments of the ECtHR that became final after 15 March 2022.
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DETENTION CONDITIONS ■ In Hungary, a court found no fundamental rights violation in the case of a prisoner who had been transported from one prison to another 32 times in poor conditions (lack of a toilet, handcuffing, lack of a safety belt). Also in Hungary, a court ruled that forcing a non-smoking prisoner to wait in the yard together with smoking prisoners due to a lack of a sufficient number of prison guards amounted to a violation of his right to life and health. The Russian Ministry of Justice adopted a new regulation that improves prison conditions standards. In Greece, new legislation amends the conditions for the transfer of prisoners into low-security “agricultural prisons” (prison camps), both simplifying the conditions for the transfer and increasing the number of offences that constitute a ground for exclusion from this measure. In Belgium, the Director General of the Prison Administration announced the closure of one of the two existing “transition houses” (small prisons) in the country following the withdrawal of the private company that was to operate it. Also in Belgium, the Minister of Justice announced the forthcoming opening of detention houses for the execution of short prison sentences.
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FREEDOM OF SPEECH ■ The German Federal Constitutional Court ruled that the prison administration had violated a prisoner’s freedom of expression by refusing a journalist’s request for an interview.
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INFORMATION TECHNOLOGY ■ In Spain, the Government adopted a Royal Decree establishing a regulatory framework for the use of information technologies in prison.
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LIFE SENTENCES ■ In Poland, among other proposed amendments, the Ministry of Justice wishes to introduce life imprisonment without parole for a number of crimes.
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MONITORING ■ The status of the Hungarian National Preventive Mechanism was downgraded by its peers due to its lack of independence. In Belgium, the prison administration issued an internal memo asking prison directors to systematically report serious incidents to monitoring commissions. In France, the President of the Toulouse Bar visited a local prison and assessed the government’s implementation of an interim order issued by a court some months ago.
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PREVENTIVE DETENTION ■ The Polish government announced a series of amendments to the law on preventive detention centres, where people with mental disorders deemed dangerous are held after serving a prison sentence.
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PRISON STAFF ■ Prison officers of an Austrian prison sent an official letter to the director of the prison, claiming that they had “lost control” of the facility and mentioning numerous serious management problems.
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PRIVATE AND FAMILY LIFE ■ The Supreme Court of Russia extended the list of institutions with which a prisoner can correspond in total confidentiality. The Hungarian Supreme Court ruled that the placement of a prisoner more than 200 km away from his relatives did not violate his rights. A series of amendments to the Lithuanian Code on the Execution of Sentences increases the number of visits and telephone calls to which prisoners are entitled (the reform also brings significant changes in the areas of work, detention regimes and electronic monitoring). An Austrian court rejected the application of a prisoner who requested authorisation to purchase a laptop with the money he had earned in prison and considered the stated aim of this purchase (“education”) to be “unspecific”. In Germany, the Federal Constitutional Court ruled that by subjecting a prisoner to random, supervised urine checks, which took place in the presence of prison staff, the prison administration violated the prisoner’s right to privacy. The Polish Constitutional Court ruled that a law denying a family member of a detainee the right to file a complaint against the prosecutor’s refusal to allow the detainee to contact the family member by telephone was constitutional. In a request for a preliminary ruling sent to the CJUE, an Italian Supreme Court asked whether the surrender of a mother who lives with minor children is compatible with European human rights law.
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SENTENCE ADJUSTMENT ■ In Belgium, a reform giving jurisdiction to decide on sentence adjustment to the enforcement courts for all categories of prisoners entered into force. Also in Belgium, a new law allows for the early release of prisoners six months before the end of their sentence. The Spanish National Court (Audiencia Nacional) ruled that when considering granting temporary prison leave to inmates convicted of terrorist offences, positive indicators of good behaviour and reintegration prevail over the requirement to explicitly request forgiveness from victims. In Italy, a tribunal ruled that a public servant convicted of aggravated corruption, whose collaboration with justice had been recognised by the judge as an extenuating circumstance of the crime, can request to access forms of punishment other than incarceration immediately after the trial without having to be subjected to the scrutiny of the magistratura di sorveglianza (surveillance judiciary). In the Czech Republic, the Constitutional Court recalled that no category of prisoners should be excluded from the possibility of parole and specified the criteria ordinary courts should use when considering granting a second parole for the same prison sentence.
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TORTURE ■ In Russia, a new law reformulating the definition of torture in Russian criminal legislation entered into force.
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COUNCIL OF EUROPE
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RUSSIA ■ On 11 June 2022, the Russian Parliament adopted a law allowing the Russian authorities not to execute ECtHR judgments that became final after 15 March 2022 (the date on which Russia declared its intention to withdraw from the Council of Europe, followed by its exclusion from the Council of Europe by decision of the Committee of Ministers under Article 8 of the Council’s Statute). Following the adoption of the law, lawyers and human rights defenders have reported cases of explicit refusal by the Prosecutor General’s Office to pay compensation awarded by the Court, particularly in cases of torture. Some intend to challenge the non-execution law in the Russian Constitutional Court. The non-execution law also removed prisoners’ right to receive unlimited confidential visits from their legal representation before the Court.
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COMPENSATORY REMEDIES
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BELGIUM ■ The Complaints Commission of Paifve, Belgium, awarded a prisoner who had been unlawfully heard in the absence of his lawyer a strawberry pie (decision CP26/22-0009, adopted on 20 July 2022). Under Belgian law, such commissions can award non-financial compensation to prisoners who are victims of an unlawful or unreasonable decision taken by the Director of the prison where they are incarcerated. After indicating that he wanted his cell to be treated against cockroaches, he eventually settled for a strawberry pie as compensation. The request was granted by the Commission on the condition that it was provided by the prison, and not financed by the social welfare fund (which is funded by prisoners). While this decision may be cynically amusing, it is a reminder of the extent of the deprivation that prisoners suffer and the harshness of prison conditions. Beyond its laughable character, it questions the effectiveness of prisoners’ right to complain in Belgium.
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BULGARIA ■ On 16 June 2022, the Administrative Court of Plovdiv, Bulgaria, awarded compensation for non-pecuniary damage suffered by a prisoner who had been detained in “inhuman and degrading” conditions (overcrowding, poor hygiene, inadequate lighting, insufficient medical care, etc.) on the basis of the amount of social aid granted to persons without resources (No. 1127, case No. 285/202). As a result, while the applicant requested compensation of BGN 70,000 (EUR 35,000), he was granted BGN 877 (EUR 439). This follows several similar previous decisions by the same court. This situation is likely to give rise to applications to the ECtHR under Article 3, as applicants retain their victim status due to the low level of compensation at the national level.
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COVID-19
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GEORGIA ■ In Georgia, a law to compensate prisoners for COVID-19 restrictions imposed in prison was passed on 12 April 2022. The law introduces a system of sentence reduction and applies to people who were imprisoned between 5 March 2020 and 20 August 2021. The sentences of prisoners serving a sentence of more than two years will be reduced by 75 days. Those serving a sentence of less than two years will have their sentences reduced by 45 days. Women and the elderly (aged 70 or over) will have their sentences reduced by 105 days.
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HUNGARY ■ In Hungary, visits to prisons were reinstated on 1 June 2022, under the same conditions as before the pandemic (prisoners are allowed four visitors, including two children; prisoners under special security regimes are allowed two to three visits per month; most prison regimes allow visits of 60-90 minutes). However, the National Prison Service stated that visits will always be carried out with the complete physical separation of visitors, regardless of the security regime and risk category assigned to the prisoners, or their health status and that of their visitors.
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PORTUGAL ■ The Court of Appeal of Porto, Portugal, ruled that the temporary measures introduced by Law no. 9/2020 to make the execution of sentences more flexible during the COVID-19 pandemic apply only to prison sentences and not to home detention, which is a sentence of a separate nature (case no. 37/15.7TXPRT-K.P1). These measures, which are no longer in force, included a pardon for certain minor offences (prisoners sentenced to a custodial sentence of two years or less were eligible, as were those with longer sentence provided that they had already served half the sentence and less than two years remained); an exceptional pardon scheme (granted by the President, proposed by the Ministry of Justice) for prisoners aged 65 or over on the date of the law’s entry into force, as well as for prisoners with physical or mental illnesses or whose state of health is incompatible with their continued detention in the context of the pandemic; an extraordinary regime of administrative leave for a renewable period of 45 days (granted by the Director General of Rehabilitation and Prison Services); a review of pre-trial detention before the end of the three-month period foreseen in the Law on Criminal Procedure, in particular for vulnerable prisoners.
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DETENTION CONDITIONS
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HUNGARY ■ In Hungary, the Metropolitan Court ruled that the rights of a prisoner who had been transported from one institution to another in poor conditions had not been violated (judgment no. 20.P.23.160/2020/11). The applicant had been transported 32 times, for a total of 6,200 km, as part of collective transport (in which prisoners are not transported directly to their next detention facility). He was handcuffed, had no access to the toilet, and there was no proper seat belt in the vehicle. Although the Court expressed concern, it did not find any violation of the detainee’s rights.
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Also in Hungary, a court found that a prisoner’s right to life and health had been violated by (i) not allowing him to spend one hour in the open air per day and (ii) forcing him to wait in the yard with other prisoners who were smoking during their work break, because it was not possible to separate him in the yard due to a lack of sufficient prison guards (Case no 26.P.20.133/2021/29, final on 28 June 2022).
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Other safeguards, such as self-education, access to academic books and the use of online educational programmes, do not have a defined procedure for their realisation. The regulation provides, among other things, daily access to showers for prisoners with disabilities, pregnant women and women with children, and an increase in the number of weekly showers for other categories of prisoners. According to the new regulations, prisoners have access to information on their health status and their medical documents. They are also allowed to keep their prescribed medicines in their cells. The regulation extends the list of items that prisoners are allowed to receive and use. The regulation also provides for the installation of “information terminals” which will provide access to legal and other useful information, and allow prisoners to file complaints online, request medical services, and purchase goods and food. The regulation also provides for the possibility of requesting visits from family and lawyers online. Finally, according to the regulations, personal searches of detainees can be carried out using technical devices, which would not require them to undress.
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GREECE ■ The Greek Parliament adopted Law 4937/2022 (O.G.G. Issue A’ 106/2 June 2022), which amends the conditions for the transfer of prisoners into low- security “agricultural prisons” (prison camps). Agricultural prisons are an innovative incarceration model, which rewards prisoners’ good behaviour by allowing them to live in minimum security “open” prisons, perform agricultural work and prepare for their reintegration into society. Under the previous framework, to be eligible for transfer, the prisoner had to fulfil the conditions to be awarded regular leave, have been awarded regular leave at least once, and complied with the conditions of the leave.
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Under the new provision, this condition is maintained only for felonies and is omitted entirely for misdemeanours. Practically, this removes restrictions in relation to the minimum sentence served and allows prisoners convicted for most misdemeanours to be transferred to agricultural prisons at the beginning of their sentence, provided that they fulfil certain other requirements. These restrictions continue to apply in the case of felonies. Additional conditions for the transfer, in place under the previous framework (e.g. no ongoing prosecution for offences involving acts of violence, no pending European Arrest Warrants, etc.), continue to apply. On the other hand, the previous framework allowed such transfers irrespective of the offence committed (with the exception of convictions for acts of terrorism). The new law omitted the relevant passage, instead adding a number of offences that constitute grounds for exclusion from the transfer. Specifically, the new provision prohibits the transfer of the prisoner to an agricultural prison in cases of conviction for terrorism, high treason, all offences included in Chapter 19 of the Criminal Code, and homicide committed in the context of membership in a criminal organisation. Chapter 19 offences include felonies such as rape, molestation and child pornography, as well as some misdemeanours, such as indecent exposure and propositioning, which are typically punishable with a short prison sentence.
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BELGIUM ■ In Belgium, on 16 May 2022, the Director General of the Prison Administration announced the closure of one of the country’s two “transition houses” (one in Flanders, one in Wallonia). These houses were created in 2020 as part of a pilot project to test new forms of incarceration. They are small structures (housing 15 prisoners), reserved for those serving the last part of their sentence, with the aim of supporting their reintegration into the community. The closure of the Walloon house was triggered by the withdrawal of the private company that was to operate it. The ministry has announced that a new call for projects will be launched soon, but has not set a deadline or precise objectives. The Central Prisons Supervisory Council (CPSC) expressed its regret, pointing out that the first to be harmed are the prisoners who were chosen to be incarcerated there. In 2021, in a report based on its first visit to these facilities, the CPSC stated that their privatisation could have a negative impact on their efficiency.
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In addition, the Belgian Minister of Justice has announced the forthcoming opening of detention houses for the execution of short prison sentences (up to three years). Anticipating an increase in prison overcrowding as a result of reforms to the sentence management system, the Minister stated in a letter dated 29 July 2022 that prefabricated containers will be used until full-fledged detention houses are built. These containers should be operational in the last quarter of 2023.
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EDUCATION
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GEORGIA ■ In Georgia, the Ministry of Justice and the Ministry of Education and Science signed a memorandum on 2 June 2022 allowing prisoners to study at universities via an e-learning system. Previously, prisoners could enrol in university programmes and take exams but were not able to attend classes.
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FOOD
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AUSTRIA ■ The Higher Regional Court of Vienna (Austria) ruled that the simultaneous serving of dinner and lunch may violate Section 38 (1) of the Prison Act, which provides that the food provided to prisoners should meet nutritional standards, be “tasty” and served at times of the day that are generally customary for meals (Oberlandesgericht Wien, 32 Bs 360/21g, handed down on 24 February 2022, published on 12 May 2022). The Court ruled on the case of a prisoner who complained that he had received both his lunch and dinner at 10:30 am. The court stated in its decision that the usual meal times are between 5:00 and 7:00 for breakfast, 11:00 to 14:00 for lunch, and 17:00 to 19:00 for dinner. However, this decision only applies to hot or freshly prepared meals. Whether the provision of dinner well before midday constitutes a breach of the Prisons Act depends on the type of food served, the means available to the prisoner to keep the food fresh and fit for consumption throughout the day, and the temperature conditions in the cell.
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UKRAINE ■ In Ukraine, a law on the procedure of force-feeding prisoners who refuse to eat was adopted on 19 July 2022. In case of the necessity of force-feeding, the prosecutor must apply to the judge with the petition and relevant medical documents. In case of a request for force-feeding a prisoner, the judge must examine the petition within 24 hours. The court should seek a doctor’s opinion on the state of health of the prisoner and the need to have recourse to force-feeding. The court’s decision on force-feeding is immediately enforceable, but can be appealed. The court’s decision is made for a maximum of 30 days and can be readopted after the established period.
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FREEDOM OF SPEECH
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GERMANY ■ The German Federal Constitutional Court (FCC) ruled that the prison administration had violated a prisoner’s freedom of expression by refusing a journalist’s request for an interview. (BVerfG, Beschluss dated 7 July 2022 – 2 BvR 784/21). The prisoner had served a prison sentence and been subsequently held in preventive detention. He was asked by a journalist for an interview on alternatives to imprisonment. The prison administration rejected this request on the basis of section 25 no. 2 StVollzG NRW, which provides that visits and correspondence may be restricted if they may have a negative effect on the prisoner and his reintegration. In this case, the prison administration considered that the interview could have such a negative effect due to the narcissistic and dissocial personality of the prisoner. Both the Sentence Enforcement Chamber (Strafvollstreckungskammer) and the Higher Regional Court (Oberlandesgericht) rejected the prisoner’s appeal. The FCC found that the courts had not interpreted the relevant legal provision in light of the fundamental right of freedom of expression.
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HEALTH
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BULGARIA ■ On 13 April 2022, the Administrative Court of Sliven, Bulgaria, acting as an appellate court, awarded compensation for non-pecuniary damage suffered by a prisoner who had contracted tuberculosis in prison (case no. 42/2022). The prisoner made use of the compensatory remedy provided for in the Execution of Punishment and Pre-Trial Detention Act. He submitted an expert opinion arguing that he contracted tuberculosis as a result of poor detention conditions, extreme cold and chronic stress, as well as subjective factors, such as smoking and drug abuse. The court of first instance awarded him BGN 3,000 (EUR 1,500). The Chief Directorate for the Execution of Sentences appealed the decision but his appeal was rejected and the first instance decision was upheld in full by the Administrative Court in Sliven. Although the amount of compensation is unsatisfactory, the decision is progressive as it interprets the contraction of tuberculosis due, at least in part, to the conditions of detention as falling under inhuman and degrading treatment.
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RUSSIA ■ The Russian Constitutional Court ruled on 19 April 2022 that pre-trial detainees have the right to immediate appeal against dismissals of requests for a medical expert examination aiming to establish whether their state of health is compatible with their detention on remand (judgment no. 16-P). Until this judgment, a suspect or a defendant wishing to undergo a medical examination that would establish if they suffer from a disease (listed in a governmental decree) preventing them from staying in remand detention, had to apply for it before a trial court. A negative decision by the trial court could not be appealed immediately and could only be challenged through a judgment on the merits of the case. The Constitutional Court has found this delay in appeal review to run contrary to the essence of the mechanism of detainees’ medical examination, which guarantees their right to life and protection of their health. The delayed review also breaches prisoners’ rights to a judicial remedy, the Court emphasised. The Court has ordered the legislature to introduce necessary amendments to the procedural legislation and described a procedure for immediate appeal to be applied in the meantime.
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Also in Russia, the Supreme Court rejected the request of a prison medical institution to discontinue the execution of a judgment requiring it to provide a prisoner with a dental prosthesis after the prisoner had been transferred to another region (Cassation decision no. 45-КАД22-8-К7, dated 22 June 2022). The Supreme Court stated that “the uninterrupted nature of the medical assistance is an essential condition for a successful outcome. Interruption [of treatment] delays the diagnosis and the start of effective treatment, results in the loss of the results of the medical examination and necessitates its repetition, [it also] results in the implementation of incorrect and inadequate treatment.” The Supreme Court held that the medical institution should have at least prepared and sent the detainee’s medical file to his new place of detention, together with his epicrisis, containing information on medical examinations, treatment and recommendations for future medical assistance. The Supreme Court also referred to the existing mechanism of the temporary transfer of prisoners to other regions or institutions for medical treatment, implying that the institution could have initiated such a transfer to complete the prisoner’s treatment.
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BELGIUM ■ In a statement issued on 17 May 2022, the Belgian Director General of Prisons announced the distribution of free sanitary pads to all female prisoners. He also stated that a second batch of sanitary pads would be provided to prisons in 2023. For their part, prison supervisory boards have been asked by the Central Prisons Supervisory Council to ensure that this decision is properly implemented. Provided that it is implemented in accordance with the decision, this is a small revolution for prisons and women prisoners. Until now, only indigent women prisoners could receive free hygiene kits, including menstrual pads. Others had to order them from the canteen, at prices often higher than those outside prison.
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PORTUGAL ■ Sintra prison in Portugal held its first teleconsultation with a hospital unit in July 2022. This follows the signature of a protocol between the General Directorate of Rehabilitation and Prison Services and the Ministry of Health. The government hopes that teleconsultations will improve prisoners’ access to health services.
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SPAIN ■ In Spain, for the first time since Organic Law 3/2021 on the regulation of euthanasia came into force last year, the courts had to rule on a case on euthanasia in prisons. The case concerned a pre-trial detainee held in the prison wing of the Tarrasa hospital. The judges decided not to interrupt the euthanasia process, based on the fact that the above-mentioned law does not require judicial authorisation to continue the process and is silent in the case of pre-trial detention. According to the judges, the decision to euthanise is the sole responsibility of the doctors and the special commission established by the law.
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INFORMATION TECHNOLOGIES
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SPAIN ■ In Spain, Royal Decree 268/2022 modified a series of provisions of Prison Regulations to take into account the use of technologies. In particular, the decree now allows prisoners to exercise their civil, political, economic and social rights enshrined in Article 4 of the Regulations through information technology (these include the right to file complaints with the prison administration, the judicial authorities, the Prosecutor’s office, and the Ombudsman). Also, the transfer of data mentioned in article 15bis of Prison Law 1/979 now requires the prisoner’s consent and shall be in line with Law 7/2021 on data protection in criminal proceedings. As per the decree, prisoners can now use videoconferencing for communications with their families and lawyers, and prison libraries shall have access points to information networks. The use of previously prohibited objects (computers, external storage devices, connection to communication networks) shall be regulated by internal rules. In addition, the decree changes the number of phone calls to which prisoners are entitled from a maximum to a minimum of 5 per week. Whether this reform brings significant changes remains to be seen. Experts argue that its full implementation will depend on the material and technical possibilities of each facility. Furthermore, practitioners, while acknowledging the decree brings some positive changes, insist that information technologies cannot replace in-person contact – which they are to facilitate, not replace.
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LEGAL PROTECTION & REPRESENTATION
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BULGARIA ■ In a decision handed down on 6 April 2022, the Administrative Court in Sofia, Bulgaria, rejected an appeal by the National Legal Aid Office, which disagreed with the award of fees to a lawyer who represented a prisoner (case no. 8152/2021). The prisoner used the compensatory remedy provided for in the Execution of Punishment and Pre-Trial Detention Act to complain that the prison administration had not referred his case to the Labour Expert Medical Commission. The Court ruled that the legal aid granted could not be claimed by the party who lost the case. This is a progressive ruling, allowing poor prisoners to make more effective use of preventive and compensatory remedies.
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UKRAINE ■ On 3 May 2022, the Ukrainian Executive Criminal Code and the Law on Pre-Trial Detention were amended to allow representatives of prisoners before the International Criminal Court to visit their clients and provide them with legal advice.
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RUSSIA ■ On 18 May 2022, the Supreme Court of Russia (Cassation decision no. 42-КАД22-1-К4) extended the possibility for remand prisoners to create a power of attorney. Under the Internal Regime Rules of Remand Prisons adopted by the Ministry of Justice, powers of attorney had to be authorised by an investigator or judge in charge of a criminal case. The Supreme Court ruled that this prior authorisation requirement only applies to powers of attorney authorising a third party to enter civil law agreements and dispose of property on behalf of the principal (a detainee). In other cases (e.g., authorising someone to act before public authorities on the prisoner’s behalf) no prior authorisation is required.
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GERMANY ■ On 25 May 2022, the German Federal Constitutional Court ruled that a prisoner’s constitutional right to an effective remedy, enshrined in Article 19 (4) of the Constitution, had been violated due to a court’s failure to process his application in a timely manner. The applicant had applied in September 2021 for interim measures before the Sentence Enforcement Chamber (Strafvollstreckungskammer) of the Regensburg Regional Court (Landgericht) because the on-site emergency call system in the Straubing prison had been defective for many months. Noting that there was no reaction to his request, he filed a complaint about the delay in December 2021, March 2022 and April 2022. This seven-month delay was deemed excessive by the Constitutional Court, which ruled in favour of the applicant and recalled that the right to a remedy must not remain theoretical but be effective in practice. This includes the obligation to examine an application within a reasonable time.
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LGBTIQ
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LIFE SENTENCES
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The stated aim of the new project, called “Modern Prisons”, is to “stop treating the prison as a hotel or sanatorium, to remove unjustified privileges for prisoners, and to increase security in prisons”. One of the most important and controversial changes is the introduction of life imprisonment without parole that judges may impose on people who have committed a crime and who have previously been convicted of (a) a crime against life and health, liberty, sexual freedom, public safety, or who have previously been sentenced to (b) life imprisonment for a terrorist crime (c), or to imprisonment for at least 20 years. The new life imprisonment sentence may also be imposed if the nature and circumstances of the act and the personal characteristics of the offender indicate that his or her release will result in a continuing danger to the life, health, liberty, or sexual freedom of others. The Ombudsman and NGOs have criticised this amendment as being contrary to the right to dignity, enshrined in Article 30 of the Polish Constitution.
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Other major changes are proposed, such as the possibility to detain a convicted person immediately after sentencing, the detention of juveniles who have committed serious offences in adult prisons instead of an educational centre, and a change in the functioning of health care in prison. Among other things, prisoners would have to wait for individual health care services provided by the public health insurance system based on the same rules as the general population (meaning longer waiting times).
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MONITORING
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BELGIUM ■ In Belgium, the prison administration issued an internal memo asking prison directors to systematically report serious incidents to monitoring commissions. These commissions (there is one for each prison in the country), composed of volunteer citizens, are independent bodies that report directly to the Central Prison Supervision Council (CPSC), which then reports to Parliament. Neither the commissions nor the CPSC are formally NPMs, as Optional Protocol to the Convention Against Torture (OPCAT) has not yet been ratified by Belgium.
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FRANCE ■ In France, the President of the Bar of Toulouse visited the Toulouse-Seysses prison on 11 May 2022 to assess the implementation of a previous interim order in which the Administrative Court of Toulouse requested the government to implement a number of urgent measures to address major problems relating to sanitary conditions, outdoor activities and violence (both between inmates and between inmates and prison guards) – see our previous report. Bar Presidents are authorised to visit prisons without prior notice under a law adopted in December 2021 (no. 2021-1729). Noting that almost a year after the interim order, certain measures have still not been implemented, the Toulouse Bar Association and the NGO International Prison Watch (OIP-SF) referred the matter to the administrative court on 13 July 2022 so that it could draw up a list of concrete measures to be adopted as a matter of urgency and impose sanctions on the state in the event of delayed implementation.
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PREVENTIVE DETENTION
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POLAND ■ The Polish government announced on 4 April 2022 a series of amendments prepared by the Ministry of Health to the law regulating the rights and obligations of persons detained in national centres for the prevention of dissocial behaviour (Act of 22 November 2013 on the treatment of persons with mental disorders who pose a threat to the life, health or sexual freedom of others). These centres are closed units where people with mental, personality or sexual preference disorders deemed particularly dangerous are held after serving a prison sentence. Although they are supposed to be mental health facilities, they are institutions of a penal nature.
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Among other things, the government’s proposed amendments would provide free, state-funded health care to patients, regardless of their eligibility for health insurance (currently, the uninsured are excluded from the public health system). They also propose a concise catalogue of the rights and obligations of persons detained in the centres, and a list of related actions to be taken by a centre’s management. The draft amendments also set a limit for visits (one visit of a maximum of one hour per day), a detail that is currently left to the discretion of the head of the centre. Finally, it is proposed to allow detainees to be granted leave to use medical services, attend a court session as a defendant or witness, or to attend the funeral of a relative (this possibility does not exist in the current legal framework).
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The need to reform the functioning of the centres has been advocated by NGOs and the Ombudsman since their inception a decade ago. A number of scientific articles and monographs have been devoted to this issue, and several applications have been sent by patients to the ECtHR arguing i.a. that their continued detention and detention conditions violate articles 5(1) and Articles 3 and 8 of the ECHR. According to the Ombudsman, the draft amendments are insufficient to significantly improve the situation.
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PRISON LAW
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PRISON STAFF
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AUSTRIA ■ In July 2022, prison officers at Graz-Jakomini prison in Austria sent an official letter to the director of the prison, claiming that they had “lost control” of the facility and mentioning numerous serious management problems. They claim that many disciplinary offences are not sanctioned, or that sanctions are imposed so late that they lose any deterrent effect. In addition, due to a lack of staff, security measures cannot be carried out (e.g., cell searches on the suspicion of possession of illegal objects). A parliamentary request has been sent to the Ministry of Justice.
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PRISON STATISTICS
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LITHUANIA ■ On 11 July 2022, the Lithuanian government approved the construction of a new prison in the Šiauliai district, the first since the restoration of the country’s independence. The new building will replace the existing Šiauliai Remand Prison, located in the centre of the city. The 111-year-old prison does not offer suitable conditions for prisoners held there (personal space in a cell is about 3 square meters), nor for the prison staff working there, the deputy justice minister said. Over the past six years, the national courts have awarded one million euros in compensation for poor prison conditions. In the new prison, there will be no more than two people per cell, and each prisoner will have five square meters of personal space. The building is expected to be completed by 2025.
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HUNGARY ■ In Hungary, the number of pre-trial detainees grew, even during the COVID-19 pandemic, with 25% growth between June 2020 (3,102) and June 2021 (3,815). According to the latest CoE SPACE-I statistics, in 2021, the country had 180 prisoners per 100,000 inhabitants, the 8th highest rate in the then 47 CoE. This trend is symptomatic of a criminal justice system that focuses heavily on prison and punishment, leaving non-custodial sanctions and measures underused and prisons overcrowded. The ECtHR, in its judgment in Varga and Others v. Hungary, called on Hungary to urgently reduce the number of inmates in the country’s prisons to protect human and procedural rights, emphasising the role non-custodial sanctions can and should play in this regard.
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MOLDOVA ■ Data recently provided by the Moldovan National Prison Administration shows that 11 out of 17 prisons remain overcrowded. Also in Moldova, an order from the Ministry of Justice increasing the official capacity of some penitentiary establishments reduces the personal space available per prisoner and thus negatively impacts detention conditions. In Chișinău Prison No. 13, where the original capacity of 570 places was set at 816 places, prisoners now have personal space of 3 square meters, compared to a minimum of 4 square meters before the reform. This situation is contrary to national and international standards. Lastly, statistics published in July 2022 by the Moldovan authorities show that the amnesty law adopted at the end of 2021 is scarcely used. While the primary objective of the law is to improve the reintegration of imprisoned persons and to compensate prisoners for the poor detention conditions they endured, it is also a means to reduce prison overcrowding. However, as of April 2022, out of 1148 applications sent since the adoption of the law, only 497 have been deemed admissible, and only 147 prisoners were actually given amnesty.
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PRISONS IN WARTIME
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RUSSIA ■ According to a number of media and NGO reports, the Russian private military company Wagner has been actively recruiting convicts from numerous Russian correctional colonies to participate in its military operations in Ukraine. The convicts are reportedly offered financial remuneration for six months of service and subsequent release under amnesty or presidential pardon procedures. Reports from the relatives of unnamed and identified prisoners suggest that convicts sign contracts with Wagner (no actual documents have been obtained by the media or published to date). Thousands of prisoners have reportedly already joined Wagner. Read here our report jointly drafted with Russia Behind Bars/Русь Сидящая.
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PRIVATE AND FAMILY LIFE
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RUSSIA ■ In a Cassation decision dated 27 April 2022, the Supreme Court of Russia (no. 23-КАД22-1-К5) extended the scope of Article 15 of the Penitentiary Code, which guarantees the confidentiality of prisoners’ correspondence with a limited number of institutions such as high executive authorities, Ombudspersons, legislative bodies, courts, prosecutors, public supervisory commissions, and international human rights bodies. It added to the list the Investigative Committee (the main Russian body dealing with criminal investigations) and its subdivisions.
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HUNGARY ■ The Hungarian Supreme Court (Curia) ruled that the placement of a prisoner more than 200 km away from his relatives did not violate his rights (judgment no. Pfv.III.20.417/2020/5). The Court stated that the national prison administration has discretionary power to choose the prison a prisoner should be placed in. Although the prisoner’s place of origin is a key factor to take into account when choosing the prison, in this case, the prisoner’s behaviour and security concerns justified the administration’s decision.
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LITHUANIA ■ The Lithuanian Parliament adopted on 28 June 2022 a series of laws establishing a revised version of the Code on the Execution of Sentences. The code will enter into force on 1 January 2023. Among the most significant changes, detainees will be entitled to an unlimited number of visits with their minor children, regardless of the security regime applied. The number of telephone calls has also been increased (unlimited for prisoners in the lenient regime serving their sentences in semi-open institutions, 4 calls per week for prisoners in closed and semi-open correctional institutions).
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The laws also introduce changes in the area of work. Self-employed prisoners and prisoners involved in volunteer activities will be considered employed and not be obliged to accept job offers from the prison administration. In addition, self-employed prisoners will be issued a certificate of individual activity (issued by the tax inspectorate), and 10% of their income will be transferred to the Social Assistance Fund for Convicted Persons.
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Concerning detention regimes, the laws establish criteria for relaxing or tightening the security measures imposed on an applicant, i.e. the risk of recidivism, the prisoner’s willingness to reintegrate, and his or her disciplinary record.
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Finally, the reform also makes some changes regarding access to parole. Under the previous legal framework, prisoners could be released on parole six months before the date on which they would be eligible for parole if they agreed to be placed under electronic monitoring. The amendments extend this period to nine months.
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AUSTRIA ■ The Regional Court of Linz, Austria, rejected a prisoner’s request for permission to buy a laptop with money he had earned in prison, as he did not have enough money. Furthermore, and most importantly, the court found that possession of a laptop was not necessary for the prisoner to pursue the stated aims of “education and language learning” and “the desire to become a writer,” which the court found to be “non-specific” (LG Linz, 10.1.2022, 21 Bl 57/21p published in JSt 2022/3). The purchase of a laptop would have been considered lawful for specific training/educational purposes. Under the Austrian Prison Act, 75% of a prisoner’s remuneration is deducted to help cover the costs of imprisonment. Of the remaining 25%, half is distributed for the prisoner to use to purchase goods (Hausgeld), while the other half is saved on their behalf and handed over at the end of the sentence to ensure a minimum level of financial support (Rücklage). These two parts (Hausgeld and Rücklage) can be used during the sentence so that the prisoner can buy goods to support his rehabilitation.
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GERMANY ■ The German Federal Constitutional Court (FCC) ruled that by subjecting a prisoner to random, supervised urine checks, which took place in the presence of prison staff, the prison administration violated the prisoner’s right to privacy within the meaning of Article 2 para. 1 read in conjunction with Article 1 para. 1 of the Constitution (BVerfG, Beschluss of 7 July 2022 – 2 BvR 784/21). The prisoner had served a prison sentence of several years and remained in preventive detention. Regular drug tests (four in a row over five weeks), by means of urine tests, were carried out, under the supervision of staff of the same sex. These tests were carried out on the basis of section 65 StVollzG NRW, which allows measures to be taken to maintain security or order in the prison. The prisoner filed applications before the Sentence Enforcement Chamber (Strafvollstreckungskammer) and the Higher Regional Court (Oberlandesgericht), in which he argued that the previous supervised urine tests were illegal and requested that future drug tests be carried out by taking blood samples from his finger. Both courts rejected the prisoner’s complaints.
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The issue of random urine testing of prisoners is a controversial topic in Germany, discussed both in academic literature and case law. The FCC left the issue open but pointed out that another provision could serve as a legal basis for carrying out such checks, namely section 56 StVollzG (federal) and section 43 StVollzG NRW, on the protection of the health of prisoners. In addition, the FCC found that the Chamber of the Execution of Prison Sentences had failed to take into account the fact that, in accordance with section 65 StVollzG NRW, substance checks can be carried out using a fingerprick. The Constitutional Court also criticised the high frequency of the checks, as no evidence of drug use was found.
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POLAND ■ In Poland, the Constitutional Court ruled that a law denying a family member of a detainee the right to file a complaint about the prosecutor’s refusal to allow the detainee to contact the family member by telephone was constitutional. The applicant was the wife of a pre-trial detainee. She asked the investigating prosecutor to allow her husband to contact her by telephone and the prosecutor refused. She filed a complaint about this refusal, but both the regional public prosecutor (Prokuratura Regionalna) and the National Public Prosecutor’s Office (Prokuratura Krajowa) rejected the complaint, arguing that according to the law, as next of kin she can request permission for contact, but does not have the right to appeal a refusal – only the detainee has the right to appeal such decision. The applicant filed a complaint with the Constitutional Court, arguing that the law was contrary to the principle of democratic rule of law, the right to complain, and the right to freedom enshrined in the Polish Constitution. The Ombudsman supported the applicant. The Constitutional Court found that the limitation was aimed at preserving the effectiveness, efficiency, and speed of criminal proceedings, and was proportionate. The Court also stressed that it is the detainee who bears the possible consequences of an appeal against the refusal decision, such as the prolongation of the criminal proceedings. Two out of five judges dissented.
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ITALY ■ On 19 April 2022, the Italian Supreme Court of Cassation, in a request for a preliminary ruling addressed to the CJEU, asked whether Articles 1(2 and 3), 3 and 4 of the Framework Decision 2002/584/JHA should be interpreted as not allowing the executing judicial authority to refuse or postpone the surrender of a mother who lives with minor children. If this were the case, the Court asked whether these articles would be consistent with the EU Charter of Fundamental Rights, the case law of the ECtHR, and EU member states’ constitutional traditions, “in so far as they require the surrender of the mother, thus severing ties with minor children living with her without considering the best interest of the child”.
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RELIGION
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SECURITY
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GERMANY ■ In Germany, significant legislative changes to the North Rhine-Westphalia Prison Act (StVollzG NRW) came into force on 28 April 2022. In particular, the new version of the law strengthens the security objective of the prison system. When the StVollzG NRW was enacted, a structural distinction was made between the different objectives of a custodial sentence – rehabilitation on the one hand and security and protection of the public on the other. Rehabilitation was defined autonomously in the introductory Section 1 StVollzG NRW, while security and protection of the public were treated subordinately in Section 6 (1) StVollzG NRW. This separation was unique throughout Germany after the reform of federalism. It was based on the idea that rehabilitation is the only objective of imprisonment, while other objectives, such as security, should only be pursued through rehabilitation. The two elements are now combined in Section 1 and are referred to under the heading “Purpose and task of the correctional system”. Although symbolic, this change could have a direct negative impact on the use of discretion in decision-making, for example in relation to prison leave.
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Other important changes concern the right to single-celling. The previous version of the law provided that derogations from the single-celling principle could be accepted in individual cases for compelling reasons of prison organisation. The notion of “compelling reasons” was deleted in the new version of the Act, thereby increasing the number of circumstances from which the single-celling principle could be departed. The legislature argued that this change was necessary because of expected capacity shortages during prison renovation/expansion. In a statement issued on 7 January 2022, Dr Marcus Schaerff (University of Münster) argued that these restrictions will not be limited to construction-related situations and that a significant increase in shared accommodation is expected in the future.
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SPAIN ■ In Spain, a new instruction adopted by the General Secretariat of the Penitentiary Administration lists new areas of prisons where CCTV cameras should be installed: cells for mechanical restraint, areas where strip searches are carried out, areas where coercive means used by officials are kept, and cells for the application of the temporary isolation measure (Instruction 4/2022 of 28 July 2022). The instruction also provides guidance on access to the recordings. These are only accessible to staff expressly designated by a procedure of “individualized keys or codes” allowing traceability. The recordings may be made available to the competent authorities in the event of a complaint. In the absence of a complaint, the recordings will be destroyed (without being removed from the system) after three months. In his latest report, the Ombudsman recommended that this period be extended to a minimum of six months.
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SENTENCE ADJUSTMENT
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BELGIUM ■ A long-awaited reform of the Belgian sentence adjustment system came into force on 1 September 2022. Its main feature is to give the competence to decide on sentence adjustment to a judge for all categories of prisoners. Until September, the prison administration remained competent to decide on sentence adjustments for prisoners sentenced to less than 3 years. While the reform is positive in that it strengthens the principle of legal certainty, it could also lead to a sharp increase in overcrowding in the short term. Before the reform, the vast majority of prisoners with short prison sentences were placed directly under electronic surveillance without being incarcerated. From September onwards, all those sentenced to prison (including short terms) will be effectively detained until their case is reviewed by a judge.
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SPAIN ■ A judgment of the Criminal Chamber of the Spanish National Court (Audiencia Nacional), annulled a decision of the Central Supervisory Judge rejecting the application for temporary prison leave of a prisoner convicted of terrorism due to the absence of an express request for forgiveness (decision no. 204/2022 of 31 March 2022, published on 4 April 2022). The National Court noted that the Treatment Board (a collegiate body responsible i.a. for granting temporary prison leave) unanimously agreed to grant prison leave, that all reports from the prison were positive, and that the prisoner was just over a year away from serving his full sentence and therefore his preparation for life outside of prison had to begin. This decision can be seen as a turning point in the jurisprudence in which asking the forgiveness of victims of terrorism is a condition for access to an open regime and early release from prison (as provided for by Art. 72.6 of the Penitentiary Act and Art. 90.8 of the Penal Code, respectively) but also to other prison benefits (such as leave) different from those for which this condition is legally provided. This development, which is welcomed by the doctrine, could be opposed by the associations of victims of terrorism.
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ITALY ■ On 13 May 2022, the Tribunal of Milan, Italy, acting as the judicial authority for the execution of a criminal conviction for aggravated corruption of a public official, ruled that immediate imprisonment could be suspended to allow the convicted person to request a sentence other than imprisonment, due to the recognition, by the judge of the related trial, of the mitigating circumstance of collaboration with the justice. Corruption of public officials is one of the offences referred to in Art. 4 bis l. 354/1975, according to which collaboration with the judicial authorities is an essential condition for access to benefici penitenziari (penitentiary advantages). This is a category of measures granted to prisoners and convicts with a good behavioural record, ranging from temporary leave to forms of punishment other than imprisonment, such as probation and home detention. Authority for these measures is usually delegated to the Italian magistracy sector whose function is to supervise the execution of irrevocable criminal sentences and to evaluate the rehabilitation process of the offender (magistratura di sorveglianza, the surveillance judiciary). For this reason, these crimes are generally excluded from the effect of Art. 656, c. 4 bis and c. 5 of the Italian Criminal Procedure Code, which allows , immediately after the conclusion of the criminal trial, a 30-day suspension of prison sentences below certain time thresholds, giving the convicted person the time necessary to adequately request a form of alternative punishment to imprisonment. However, in this case, the trial judge had already established the existence of the offender’s collaboration with the judiciary as a mitigating circumstance for the crime, ex A rt. 323 bis, c. 2 c.p. (to which A rt. 4 bis l. 354/1975 refers as a parameter of the collaboration requirement). This requirement guarantees the severance of the relationship between the convicted person and those who are part of their criminal past. The Tribunal of Milan considered that due to the nature of the crime in question, the first instance judge was already fully capable of assessing the irreversible end of the corrupt relationship and that it was not necessary to resort to the subsequent examination of the magistratura di sorveglianza, which would have prevented the convicted person from being able to benefit from a more favourable punitive regime due to their collaborative behaviour.
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CZECH REPUBLIC ■ The Constitutional Court of the Czech Republic recalled that no category of prisoners should be excluded from the possibility of parole on a general basis (ruling no. IV. ÚS 2393/2021). The ruling refers to the practice of ordinary courts rejecting applications for parole from repeat offenders. The Constitutional Court specified in its decision the elements that must be taken into account by the general courts when considering an application for parole (changes in the offender’s personality, assessment of the risk of recidivism, and the social environment in which they will live during parole).
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Also in the Czech Republic, the Constitutional Court specified the criteria that ordinary courts should use when considering granting a second parole for the same prison sentence. This mainly concerns two categories of prisoners: those who have been conditionally released but have not returned to prison at the end of the release period; and those who have been conditionally released, fulfilled all their obligations but have been sentenced to an additional term of imprisonment related to their original sentence. According to Article 91(5) of the Penal Code, prisoners may be granted a second parole after serving half or two-thirds of their sentence. Prisoners sentenced to life imprisonment are not eligible for this provision. The Constitutional Court has stated that the obligation to serve half or two-thirds of the prison sentence applies only to prisoners in the first category (i.e. those who have not returned to prison at the end of the release period). In the second case (for prisoners subsequently sentenced to an additional custodial sentence), those concerned are treated as if they had not previously been granted parole. A new application would therefore be considered as a first application.
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The Czech League for Human Rights (Liga lidských práv) considered the two above-mentioned decisions of the Constitutional Court to be beneficial and protective of the rights of convicts serving a prison sentence.
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TORTURE
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RUSSIA ■ The draft law reformulating the definition of torture in Russian criminal legislation has been adopted and entered into force on 14 July 2022. The shortcomings pointed out by lawyers and human rights defenders have not been eradicated, as the draft law still does not properly criminalise the act of torture as a separate offense in Russian criminal law (see our previous report).
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TRANSFER
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BULGARIA ■ The Administrative Court of Stara Zagora, Bulgaria, annulled a decision by the prison administration to transfer a prisoner as unlawful (decision no. 276 in case no. 618/2021, dated 24 June 2022). The applicant had initiated administrative proceedings after his transfer from Sofia Prison to Stara Zagora Prison had been ordered. The reasons given by the administration included the inmate’s behaviour, the fact that he had lodged a complaint against the prison administration, a selective approach to work opportunities, etc. The Administrative Court found that the decision was arbitrary and unlawful, as the reasons given could not be supported by reliable evidence and therefore did not correspond to the valid reasons provided for in Art. 62, para. 1, item 4 of the Execution of Sentences and Remand Act. This is a positive development in that it allows for judicial review of transfers and prevents arbitrariness in this procedure.
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POLAND ■ The Polish Supreme Court ruled on 7 April 2022 that a convicted person with dual citizenship (in this case Polish and German) can be transferred to another state to serve a prison sentence (case no. IV KK 578/21). While the court of first instance, applying the 1983 Strasbourg Convention on the Transfer of Sentenced Persons, approved the applicant’s transfer to Germany, the Court of Appeal rejected the request on the grounds that, as a Polish citizen, he could not be considered a foreigner. The Polish Ombudsman appealed to the Supreme Court, which ruled that the transfer regulated by the Strasbourg Convention is not prevented by the fact that the convicted person is also a Polish citizen. The Court noted that under Article 3(1)(a) of the Convention, a transfer can only take place if “the sentenced person is a national of the administering State”. Thus, a person who holds Polish citizenship in addition to the citizenship of the administering State is by definition also a citizen of the administering State.
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WORK
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AUSTRIA ■ The Vienna Criminal Court (Austria) declared that a prisoner who was unable to work as a result of a disciplinary sanction cannot receive compensation (LG für Strafsachen Wien 10.12.2021, 190 Bl 110/21p, published in JSt 2/2022). The applicant was sentenced to solitary confinement (“Hausarrest”) after having been found guilty of misconduct. He was not banned from working for the first week. During the second week, he was allowed to work in his cell but, due to the architecture of the prison, in-cell work could not be arranged. He argued that he was always willing to work during his isolation and he could have worked if the architecture of the prison had allowed it. He claimed compensation on the basis of section 54 of the Prisons Act, which provides that a prisoner is entitled to receive compensation (amounting to 5% of the prisoner’s lowest remuneration) for the time they have not worked if the inability to work was not due to intent on their part or to an act of gross negligence. The Court considered that deprivation of work resulting from the prisoner’s own misconduct does not give rise to a right to compensation. The fact that the prisoner was willing to work or that the prison administration could not offer work in the cell is irrelevant.
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FRANCE ■ In France, since 1 May 2022, prisoners working in prisons are recruited through a “prison work contract”. This new type of contract was created by a law passed in December 2021, while the practical details (nature of the contract, working hours, and employer’s obligations) were specified by a decree of 25 April 2022. Its objective is to bring working conditions in detention closer to those that prisoners will experience once they are released, thus promoting their professional reintegration and preventing recidivism. In a collective statement, French NGOs said that major problems with prison labour remain, including the fact that this new employment contract maintains a disproportionate imbalance between employers’ obligations and prisoners’ constraints. Indeed, the minimum wage in prison will be 20-45% of the minimum wage on the outside, in order to meet the private sector’s interest in low wages and flexible working. The prison administration argues that if working conditions were aligned with the general regime, private companies would have no interest in hiring prisoners. Furthermore, the decree does not specify how prisoners will contribute to the social insurance system and acquire social rights on the basis of the work performed.
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BULGARIA ■ The Bulgarian Supreme Administrative Court ruled that a prison director’s decision to suspend a prisoner from work should be subject to judicial review (judgment no. 6685 in case no. 5636/2022, dated 6 July 2022). In doing so, it overruled an earlier decision of the court of first instance, which held that such decisions should not be subject to judicial review, since the offer of work to prisoners is not an obligation imposed on the prison administration, but merely a possibility, and because prison work is not carried out under an employment contract. The Supreme Administrative Court stated that all administrative acts must be subject to judicial review and that the suspension decision affected the rights and interests of the applicants. This judgment is important and progressive, as it subjects the right of prison authorities to offer work to judicial review and prevents arbitrariness.
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A special thank you to our members and associate partners for jointly drafting this newsletter!
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This newsletter is funded by the European Union, UNAIDS and the Robert Carr Fund. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union, the European Commission, UNAIDS or the Robert Carr Fund. Neither the European Union, the European Commission, UNAIDS nor the Robert Carr Fund can be held responsible for them.
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