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PRISONS IN EUROPE : DOMESTIC LEGAL NEWS

24 JULY 2023

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 it enables you to better identify European trends and use them in your legal practice.

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 it most useful to you.

PRISON LEGAL NEWS OVERVIEW

MARCH – MAY 2023

READ MORE AFTER THE OVERVIEW

CONTACT WITH THE OUTSIDE WORLD ■ In Germany, a Higher Regional Court reiterated that when refusing requests for prison leave, the prison administration must give concrete elements substantiating a risk to escape or to commit new crimes:

In Greece, the Supreme Civil and Criminal Court Prosecutor’s Office issued a circular on prisoners’ rights to visit seriously ill close relatives or, in case of death, to attend their funerals. The circular follows the publication of a ECtHR judgment that found a violation in the case of a prisoner who could not visit his sick mother and later attend her funeral.

In Poland, the Commissioner for Human Rights issued a statement criticising recent amendments to the executive penal code that have in practice limited prisoners’ access to phone calls.

In Romania, following a recommendation of the People’s Advocate, the prison administration reduced the maximum period within which the penitentiary administration must provide envelopes and stamps to prisoners from 30 to seven days.

In Spain, the Supreme Court ruled that prison establishments must examine requests for short-term prison leave filed by prisoners within a three month period – except in exceptional cases. The six-month period complained of by the applicant in this case was deemed excessively long.

In Ukraine, a decree set up a pilot project on the provision of paid services to pre-trial detainees, including access to internet and telephone communication. The decree raises some questions about ensuring detainees’ privacy, as well as the subsequent storage and management of recordings of private communications.

DETENTION CONDITIONS ■ In Belgium, a Complaints Commission found that the detention conditions of a prisoner held in an overcrowding cell amounted to a violation of Article 3 ECHR. In doing so, the commission, in principle tasked with reviewing individual decisions made by the prison director, addressed a structural problem in Belgian prisons. Also in Belgium, the annual reports of Prison Supervisory Commissions, tasked with monitoring detention conditions, were released.

In France, the Supreme Administrative Court ruled in favour of NGOs that had filed an application against appalling detention conditions in one of the country’s prisons, and ordered the adoption of urgent measures. In its decision, the Supreme Court considered the findings of an MP visit to the prison, which contradicted the first instance administrative court’s restrictive approach to the case. Also in France, a first instance administrative court ordered the state to take urgent measures to improve detention conditions in one of the country’s prisons. The court based its judgment on the harsh conclusions made by the NPM following her visit to this prison a few months earlier.

In Germany, the Federal Constitutional Court ruled that prisoners can challenge a decision to transfer them to another facility, even after the transfer has taken place.

In Lithuania, a seventh halfway house, focusing on preparing prisoners for release, will open.

In Poland, the Commissioner for Human Rights issued a statement criticizing the practice of denying inmates the right to wear their own clothes in semi-open prison facilities.

In Spain, a protocol signed between the Spanish Central Prison Administration and the Basque region Prison Administration established an “optimal” and “operational” (i.e. maximum) number of prisoners for each of the three prisons in the Basque region.

HEALTH ■ In Austria, as a result of amendments made to the criminal code and the Prison Act, dozens of people detained under the preventive detention regime may be released in September 2023 without having been adequately prepared for their reintegration into the community.

In Bulgaria, an Administrative Court found admissible a disabled prisoner’s complaint that she experienced inhuman and degrading treatment because the prison administration had not presented her before the competent commission to certify her disability. The prison administration eventually acted, and the court terminated the proceedings without examining the merits.

In Lithuania, the Ombudsperson released a report finding a series of shortcomings in the prevention and treatment of infectious diseases in detention (hepatitis B and C, tuberculosis, HIV/AIDS and sexually transmitted diseases).

In Moldova, the prison healthcare system continues to suffer from various deficiencies, as highlighted in a recent joint submission to the UN by Promo-LEX and EPLN.

In Poland, the Ministry of Justice opposed the proposal to provide prisoners with non-invasive diagnostic methods for hepatitis C, arguing that the health services offered to prisoners should not differ from those available in the regular healthcare system.

In Portugal, a court of appeal rejected the application of a prisoner who had requested to be transferred from a prison hospital to a civilian psychiatric hospital to serve his sentence after he had been assaulted by other prisoners.

IMPRISONED FOREIGNERS ■ In Hungary, the government adopted a decree ordering the release of imprisoned foreign nationals found guilty of human smuggling. People released under this new mechanism are to leave the country within three days. In practice, they are unsupervised.

LIFE IMPRISONMENT ■ In Germany, the Federal Constitutional Court ruled that when examining lifers’ applications for parole, the competent courts must take into account the age and life expectancy of the applicant in addition to the risk of reoffending and time already served.
The ECtHR communicated a case to the Moldovan government concerning a life-sentenced prisoner’s access to education.

PENAL LAW ■ In the Czech Republic, the government announced a series of amendments to the criminal code aiming to decrease the penal population as the country has a high incarceration rate compared to the EU average.

In Germany, a set of amendments to the criminal code modified the rate to convert an unpaid criminal law fine into a custodial sentence. The amendments would also lower the number of people to be admitted to centres providing therapy for alcohol and drug abuse in connection to criminal offenses, which would lead to an increase of people with drug and alcohol dependency problems in the ordinary prison system.

In Lithuania, amendments to the criminal code increased the threshold for damages caused by some property, economic and financial offenses that determine the seriousness of the offence. Consequently, fewer offenses will qualify as serious crimes, which impacts on the length of the custodial sentence that can be imposed.

PRISON STAFF ■ In Poland, following media reports on cases of bullying of junior prison officers by their superiors, the Commissioner for Human Rights requested additional information from the Prison Service on the scale of the phenomenon and the measures taken to counter it.

In Portugal, the Director General of Reinsertion and Prison Services of Portugal warned about a staff shortage in prison and the ageing of prison guards and technicians – the average age being above 50 years.

PRISONS IN WARTIME ■ In Russia, a group of MPs proposed amendments to the Military Service Act in order to allow military service contracts to be concluded with persons who have a criminal record and to release convicts who have signed military service contracts. This came against a backdrop of massive recruitment of prisoners by the Russian private military company Wagner and the Russian authorities to fight the war in Ukraine.

PROCEDURAL RIGHTS ■ In Bulgaria, the Bulgarian Helsinki Committee released the country’s first Self-Help Litigation Manual for Prisoners. Also in Bulgaria, administrative courts continue to award very low amounts of compensation for inhuman and degrading treatment to prisoners held in poor detention conditions.

In Poland, the Commissioner for Human Rights called for changes in the complaint procedures within prisons, as the current system fails to ensure a thorough and effective investigation into complaints, as a result of amendments passed in 2022.

In Portugal, a court of appeal ruled that when prisoners held in home detention have failed to comply with their obligations and may have their sentence replaced by a custodial sentence, the competent court must hear them on pain of nullity and duly justify their decision.

RIGHT TO VOTE ■ In Bulgaria, dozens of prisoners who had been barred from voting during the April 2023 parliamentary elections applied to the ECtHR.

In Greece, the Supreme Civil and Criminal Court’s Prosecutor’s Office opined that the additional penalty of deprivation of the right to vote imposed on certain prisoners before the entry into force of the new penal code ceases to exist. In doing so, it allowed prisoners to take part in the May 2023 Greek parliamentary elections.

SECURITY ■ In Belgium, a Court of Appeal found that the strip searches with genuflection imposed on the defendants of the 2016 Brussels bombings before their transfer to court to attend their trial lacked legal basis and ordered the Belgian authorities to put an end to this practice.

In Hungary, the government published a draft bill aiming to amend the Prison Act. The bill proposes to introduce an assessment scheme for detainees, whose behaviour, combined with a mechanism for awarding or deducting scores, will determine their classification and their placement in different categories of detention regime.

In Spain, the Catalan Prison Administration and several prison officers’ unions signed an action plan to improve security in Catalan prisons, which was widely criticised by local NGOs.
Also in Spain, the Catalan Government concluded a contract with a private security company to develop an AI system based on biometric recognition to anticipate incidents in one of the region’s prisons.

In the United Kingdom, amendments to the rules governing discipline in prisons and young offender institutions give the judge the power to assess whether a case has been properly referred to it, and, if not, to refer the matter back to the prison governor.

SENTENCE ADJUSTMENT ■ In Russia, the Constitutional Court provided guidance on recalculating prison sentences for prisoners who have been mistakenly sent to a facility with a stricter regime.

Also in Russia, amendments to the criminal code lifted the age limit above which a sentence of compulsory works cannot be imposed. This change echoes plans of the Russian Penitentiary Service (FSIN) and the Ministry of Justice to actively involve prisoners in the execution of the FSIN state and private commercial contracts.

In the United Kingdom, the High Court ruled that the Parole Board Rules preventing prison and probation officers and psychologists from presenting a view or recommendation as to a prisoner’s suitability for release or move to open prison conditions are unlawful.
Also in the United Kingdom, the Supreme Court gave guidance on the proper ambit of the risk assessment that the Parole Board should perform on prisoners serving determinate sentences, and on how the Parole Board can use unproven allegations made about a prisoner.

SUICIDE ■ In Spain, the Basque Prison Administration adopted a new protocol for suicide prevention in prison. Among other measures, the protocol reinforces the role of so-called “supportive inmates” tasked to assist and accompany inmates with suicidal tendencies, and who will receive specific training and remuneration for this task.

TORTURE & ILL-TREATMENT ■ In Ukraine, a new procedure for force-feeding prisoners who refuse to eat has been established. As a result of numerous deficiencies, it can be argued that the new procedure does not meet the requirements set in the ECtHR and CPT guidance.

CONTACT WITH THE OUTSIDE WORLD

GERMANY ■ In March 2023, the Higher Regional Court of Hamm in North Rhine Westphalia (Germany) ruled that when refusing requests for prison leave the administration prison must give “positive reasons” suggesting there is a risk the prisoner would escape or commit new offenses while on leave (no. III-1 Vollz(Ws)516, 524526/22, 6 March 2023). Furthermore, the prison administration must describe the risk level based on the type of prison leave applied for (accompanied or unaccompanied) and its duration and must also propose measures to mitigate said risk. The reasons should be controlled by the competent sentencing chamber when they are called upon by the prisoner.
This ruling, which is in continuity with precedent case law on the issue, is an indication that prisons and district courts continue to ignore these standards.

GREECE ■ In May 2023, the Greek Supreme Civil and Criminal Court (Areios Pagos) Prosecutor’s Office issued a circular concerning prisoners’ rights to visit seriously ill close relatives or, in case of death, to attend their funerals. The adoption of the circular follows the publication in December 2022 of the ECtHR judgment G. T. v. Greece (no. 37830/2016, 13 December 2022), in which the court found that the prosecutor’s rejection of the applicant’s request to obtain emergency leave in order to visit his seriously ill mother and subsequently attend her funeral was rejected, lacked sufficient justification.
The circular reminds that prosecutors must specifically and thoroughly justify their decisions. It also indicates that in case of rejection of a prisoner’s request for emergency leave under Article 57 of the penal code, the competent prosecutor must take into account the case law of the ECtHR regarding the right to respect for private and family life, and in particular, carefully consider the parameters of the necessary accompaniment of the prisoner, the duration of the leave, the distance to the place of visit, the available means of transportation, and the possible official expenses. The circular also stresses that the article had been amended by Article 52 of Law 4985/2022, which facilitates the granting of emergency exit leave to prisoners, as it extends its duration to 48 hours (instead of 24 hours previously). Ultimately, the Prosecutor’s Office expressed the belief that when it comes to the loss of a close relative (especially a parent) of a prisoner due to death, the Greek Prosecutor will exhaust any lawful possibility, surpassing any bureaucratic difficulties, and acting beyond the narrow scope of official duty, with the aim of enabling the prisoner to attend the funeral.

POLAND ■ In a statement published in April 2023, the Polish Commissioner for Human Rights (RPO) expressed his concerns about the negative consequences recent amendments to the executive penal code have on prisoners’ contact with the outside world. Adopted in 2022, these amendments introduced a minimum number of phone calls per prisoner (at least one per week with a lawyer and at least once a week with another person). The RPO observed that these provisions are interpreted narrowly by prison directors in their internal regulations, who allow only one phone call a week per inmate (making this minimum a maximum in practice) – a regression compared to the situation prior to the adoption of the amendments (see also our previous report covering August-September 2022).
The RPO argues that this practice has a detrimental effect on prisoners’ rehabilitation, hampers their ability to handle official matters, and prevents them from reporting instances of mistreatment. The Commissioner also emphasized the impact of the new regulations on the right to defence for incarcerated individuals.
In response to these concerns, the Prison Service informed the RPO that steps have already been taken to revise the practice of limiting the duration of conversations between inmates and their defence lawyers.
In parallel, the National Bar Council informed the Prison Service that internal prison regulations limiting the number of calls between lawyers and their imprisoned clients to once a week are being challenged in court. According to the National Bar Council, such limitation breaches both the executive penal code and the corresponding regulation from the Ministry of Justice, which suggest that prisoners detained in closed-type facilities should be allowed to contact their lawyer at least twice a week, while prisoners held in open and semi-open facilities should be allowed to contact their lawyer daily.

ROMANIA ■ In May 2023, the Romanian National Administration of Penitentiaries adopted Decision 424/2023 setting the maximum period within which the penitentiary administration must provide envelopes and stamps to prisoners who request them at seven working days (instead of 30 days). This decision follows the January 2023 publication of a recommendation to this effect by the People’s Advocate. They had urged the prison administration to take action after being alerted by inmates during a visit to Bucharest-Rahova Prison to the difficulties they were experiencing in exercising their rights to petition and to correspondence due to the long delays in obtaining stamps and envelopes.

SPAIN ■ In May 2023 the Criminal Chamber of the Spanish Supreme Court ruled that prison establishments must examine requests for short-term prison leaves filed by prisoners within a three-month period – except in exceptional cases (no. STS 2234/2023 – ECLI:ES:TS:2023:2234, 11 May 2023). The case concerned a prisoner held in Dueñas Prison, where the time limit was set at six months by the prison administration. The applicant argued that from the date the application is filed to the date of its review, the circumstances can vary greatly. His suggestion to reduce the review period to three months was rejected by the Prison Supervision Court and by the Provincial Court of Palencia who argued that the six-month period was justified for organisational reasons.
The Supreme Court rejected this argument. Although neither the prison law nor the prison regulations set a specific time limit for reviewing short-term prison leave applications (and allow each facility’s prison administrations to set their own timeframe), the court argued that a review period of half a year was contrary to the objective of social reintegration and constituted an implied deprivation of the right to access to a court, since in practice inmates will only be able to access the Prison Supervision Court for these matters twice a year.
The court, while acknowledging that it is up to each prison establishment to decide themselves on a procedure to decide on a prisoner’s application for prison leave according to their organisational needs, decided that this review “can only be done with a clear and objective, foreseeable criteria” i.e., that of a maximum period of three months. This judgment aims at unifying the judicial doctrine and applies to all prison facilities.

UKRAINE ■ In May 2023, the Ukrainian government adopted Decree no. 402 setting up a two-year pilot project aiming to grant pre-trial detainees access to various paid services – including improved living conditions, access to the internet and telephone calls.
The project’s first and main flaw is that it discriminates against prisoners on the basis of their financial situation: only prisoners who can afford these services will benefit from better detention conditions and improved contact with the outside world.
As regards the latter, there are obvious concerns with respect to pre-trial detainees’ private and family life, as the decree gives the prison administration the competence to video-record prisoners throughout their internet usage and telephone calls. In addition, telephone conversations must be recorded and stored (for at least one year) by the prison administration.
Not only does the decree fail to define the procedures for storing, accessing and destroying recordings, but it also fails to sufficiently specify who can access the recordings, merely listing the authorised institutions (the Department for the Execution of Criminal Sentences and the Interregional Department for the Execution of Criminal Sentences of the Ministry of Justice, as well as the pre-trial detention centre in which the concerned prisoners are held).
Furthermore, the decree does not foresee exceptions to the rule of recording prisoners’ telephone conversations (e.g., with their lawyers, the Ombudsperson, prosecutors, etc.), which breaches the principle of confidentiality of communications between lawyers and their clients, and prisoners’ rights of access to justice, as well as to liberty and security.
This measure applies to all pre-trial detainees, regardless of their situation, while the CPT standards are unequivocal in this regard: any restrictions on pre-trial detainees’ fundamental rights “must be based on a thorough individual assessment of the risk which [they] may present” (CPT/Inf(2017)5-part, § 60).

DETENTION CONDITIONS

BELGIUM ■ In April 2023, the Ghent Complaints Commission (Belgium) found that the detention conditions of a mentally-ill prisoner who had been held in an overcrowded cell for three months amounted to a violation of Article 3 ECHR (no. KC09/23-0039 – KC09/23-0050, 19 April 2023) The applicant complained about the lack of activities (the only activity available to the inmate was a daily walk), the lack of personal space (one of the inmates had to sleep on a mattress on the floor), the lack of privacy when using the restroom, and passive smoking. The commission ordered the prison administration to provide the applicant and his cellmates with a living space of 3 sq. m., excluding sanitary facilities, enabling them to sleep on a bed.
While Complaints Commission are tasked with reviewing individual decisions made by the prison director, in this case the Ghent Complaints Commission addressed the structural problem of prison overcrowding in Belgium.

Also in Belgium, the annual reports of Prison Supervisory Commissions tasked with monitoring detention conditions, were released in May 2023. Prison Supervisory Commissions, composed of volunteers, are established in each of the 37 prisons of the country. They address their reports to the Central Prisons Supervisory Council, either on their own initiative or upon request. Members of the commissions also engage in mediation between prisoners and the prison management.
These reports illustrate the main problems impacting the Belgian prison system, such as “morbid” detention conditions (Saint-Gilles), lack of activities offered to prisoners caused by staff absenteeism (Nivelles), and access to healthcare (Louvain-Central, Mons, Ittre, Lantin).

FRANCE ■ In May 2023, the French Supreme Administrative Court (Conseil d’État) ordered the adoption of seven emergency measures to improve detention conditions in the Saint-Etienne Prison (e.g., installation of a toilet partition in the cells to guarantee inmates’ privacy, inspection of electrical installations, cleaning of showers, increased pumping capacity on roofs in the event of rain – no. 472994, 15 May 2023). The case was initiated by two NGOs: the International Prison Watch and the Association of Lawyers for the Defence of Prisoners’ Rights.
In doing so, the Supreme Court opposed the approach taken by the first instance administrative court of Lyon. Despite clear violations of the prisoners’ rights as a result of undignified detention conditions, the court, in flagrant contradiction with established case law on the subject, initially dismissed (without examination) the applicant’s request for interim measures. After a second application was lodged, the court rejected almost all the measures demanded by the applicants, giving undue weight to the information provided by the Ministry of Justice, as opposed to that provided by the applicants.
In their appeal to the Supreme Court, the applicants relied on the findings made several days afterwards by a Member of Parliament (MP) who had exercised her right to visit the prison that contradicted the information provided by the authorities. The MP later took part in the proceedings before the Supreme Court.
The Supreme Court’s decision, which partially gave right to the applicants by ordering a series of measures to improve prison conditions, is welcome. However, as a result of the judges’ restrictive interpretation of the nature of the interim measures they can order, other measures, better suited to address the structural problem of inadequate detention conditions were rejected (e.g., improving detention conditions and ventilation in disciplinary cells). This case follows previous cases suggesting that there is no effective preventive remedy available to detainees placed in undignified conditions of detention (see our previous report covering December 2022–February 2023).

Also in France, in April 2023, the first instance administrative court of Versailles ordered the state to implement 12 interim measures to improve detention conditions in the Bois d’Arcy Prison after finding that detention conditions exposed prisoners to inhuman and degrading treatment (resulting from various deficiencies – e.g., severe overcrowding, cockroaches, poor hygiene, faulty plumbing, defective electric installations, searches carried out in inappropriate places) and had even endangered their lives as a result of the facility’s high vulnerability to fire risks and an inadequate warning system (no. 2302657, 17 April 2013). The case was initiated by two NGOs (International Prison Watch and the Association of Lawyers for the Defence of Prisoners’ Rights) and the Paris Bar.
The harsh conclusions made by the French NPM following a visit to the facility in December 2022, and who recommended i.a. to suspend incarcerations in this prison until the safety of prisoners is ensured, played a key role in the court’s decision.

GERMANY ■ In March 2023, the German Constitutional Court issued a ruling on the case of a prisoner who had been transferred from a social therapy prison department (Sozialtherapie) to an ordinary prison (no. 2 BvR 116/23, 24 March 2023). The applicant challenged this decision before the competent District Court, with a request to suspend his transfer until his request was examined. The applicant was nevertheless transferred before the court could rule on his case. The District Court subsequently found his application and request for interim measures to be obsolete under these circumstances.
The Constitutional Court contradicted the District Court’s reasoning and declared that even though his transfer has taken place, a prisoner has the right to obtain a decision on its lawfulness. Furthermore, the Constitutional Court argued that the right to legal protection enshrined in Article 19 para. 4 of the Constitution commands that courts shall examine requests for interim measures in due time, especially when such examination before the contended action is possible.

LITHUANIA ■ In March 2023, the Lithuanian Prison Service announced the opening of a new halfway house – the seventh in the country (see our previous report covering December 2022 – February 2023). Located in the city of Tauragė, it will host 28 men and women. 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 Tauragė halfway house opened in June 2023.

POLAND ■ In a statement released in April 2023, the Polish Commissioner for Human Rights (RPO) publicized his correspondence with the Prison Service regarding complaints received from inmates held in semi-open prisons who were denied the right to wear their own clothes and were required to wear institutional clothing for reasons related to safety and order.
The Commissioner recalled that such practices contravene the provisions of the executive penal code, which grant inmates in semi-open facilities the right to wear their own clothes and forbids directors from imposing a blanket ban on the use of personal clothing.
In response to the RPO’s statement, the Central Board of the Prison Service acknowledged that blanket prohibitions on inmates using their own clothes should not be enforced in semi-open units. However, it also emphasised the importance of balancing security concerns and individual rights. The Central Board stated that directors have the authority to decide on the requirement for prisoners to wear institutional clothing in specific, justified cases.

SPAIN ■ In March 2023, the Spanish Central Prison Administration and the Prison Administration of the Basque region signed a General Action Protocol aimed at defining the “optimal” and “operational” (i.e. maximum) number of prisoners in each of the three prison facilities managed by the Basque administration. The objective is to limit entry into these prisons and to facilitate the transfer of prisoners with no specific link to the region. According to the table included in the protocol, the maximum number of prisoners in the three regional prison facilities was 1,283, while the optimal number was 783. Official data shows that when the protocol was signed, there were 1,168 prisoners in the Basque prisons, i.e., very close to the maximum capacity agreed on in the protocol.
The protocol also enhances coordination between the Basque and state administrations through the creation of a bilateral commission and the interconnection of IT systems, especially with regard to access to the files of transferred prisoners.
The legal basis for adopting the protocol is Royal Decree 474/2021 adopted on 29 June 2021, giving competence to the Basque administration for running the three regional prisons from October 2021 onwards.

HEALTH

AUSTRIA ■ In November 2022 the Austrian Parliament amended the legal provisions governing the preventive detention of mentally ill offenders (see our previous report covering October-November 2022). Under the new legal framework, which comes into force in September 2023, preventive detention may only be ordered if the person concerned committed an offence punishable by a prison sentence of at least three years’ imprisonment (up from one year under the previous legal framework). Consequently, the preventive detention of people who have been sentenced to a less severe penalty will lose its legal basis, and these people will have to be released.
While the normal procedure for releasing people from preventive detention includes a judge’s directive imposing e.g., the obligation to undergo therapy or to reside in an “assisted living facility” (Betreutes Wohnen), in the cases where preventive detention will be interrupted due to a lack of legal basis, there will also be no legal basis for judges to issue directives.
Experts have expressed concerns that the released detainees may not be sufficiently prepared for reintegration into the community and will likely face difficulties in leading a self-sufficient life, which could increase the risk of reoffending.
In this context, members of the Austrian Parliament have sent questions to the government, asking for details about the monitoring measures and support provided to those to be released (see questions 14954/J XXVII.GP, 15072/J XXVII.GP and 3401/A XXVII.GP). The government has until mid-July 2023 to answer the questions.

BULGARIA ■ In April 2023, the Sliven Administrative Court (Bulgaria) found admissible a disabled prisoner’s complaint that she experienced inhuman and degrading treatment because the prison administration had not presented her before the competent commission to certify her disability (case no. 125/2023, 7 April 2023). The prison administration eventually brought the applicant before the commission three days after she applied to court. The court therefore terminated the proceedings.

LITHUANIA ■ In May 2023, the Lithuanian Seimas Ombudsperson presented her thematic report on the availability of prevention and treatment of hepatitis B, hepatitis C, tuberculosis, HIV/AIDS, and sexually transmitted diseases in places of deprivation of liberty. The report is based on monitoring visits carried out in Marijampolė, Alytus and Pravieniškės prisons in December 2022.
The report states that in all visited prisons, primary healthcare and reintegration services were understaffed. Furthermore, educational and preventive measures were insufficient (there was no needle-exchange programme, no provision of syringes, and condoms were available only to male prisoners with rights to long-term visits). The report also notes that there was no confirmed procedure on how to provide all necessary help and services to prisoners who experienced sexual violence.
The treatment of infectious diseases also suffered from several weaknesses. The Ombudsperson observed that about 20% of HIV positive prisoners chose not to undergo retroviral therapy. And for hepatitis C, despite being widely spread among prisoners, treatment is only available to those whose fibrosis and cirrhosis has reached a specific stage, as is the same for the general population (even though there are indications that the prevalence might be higher in prison). They also found that some prisoners preferred not to take the treatment as they were certain to contract the disease again.
The Ombudsperson made a series of recommendations to address the issues identified, such as, improve staffing in the relevant services, improve testing of infectious diseases, introduce harm reduction measures, provide hepatitis C treatment to all prisoners in need, and implement educational measures to convince HIV positive prisoners to undergo retroviral therapy.

MOLDOVA ■ In May 2023, Promo-LEX and EPLN submitted a joint communication to the UN Human Rights Committee highlighting the various issues that continue to afflict Moldova’s prison healthcare system.
As a result of insufficient infrastructures, inadequate policies and a critical shortage of human resources, the principle of equivalence of care between prison and the general population is not respected. A major issue highlighted in the submission is that prison healthcare is not integrated within the national healthcare system but rather exists in parallel to it, based on specific accreditation, which has a direct effect on the quality of care provided. In addition to describing the flaws of the prison healthcare system, the submission suggests several questions to be asked by the committee to the Moldovan authorities regarding the steps taken or envisaged to improve the situation.

POLAND ■ In March 2023, the Polish Ministry of Justice expressed its opposition to the proposal to provide incarcerated individuals with non-invasive diagnostic methods, including serological tests. This proposal originates from ongoing negotiations between the Ministry of Health and the Ministry of Justice regarding the implementation of the government’s Health Policy Programme, in particular elements related to the treatment of chronic viral hepatitis C.
In a letter addressed to the Commissioner for Human Rights, the Ministry of Justice argues that the proposed methods are not used in the country’s specialised clinics, and therefore should not be made available to prisoners. The Ministry maintains that the diagnosis, qualification for treatment, and treatment itself, should align with the standards available in regular healthcare services. As a result, inmates will continue to be diagnosed using existing methods. According to the Ministry, as of 31 January 2023, there were 116 incarcerated individuals on the waiting list for hepatitis C treatment. A budget of PLN 400,000 (EUR 90,000) has been allocated for the purchase of medicinal products used in the treatment of viral hepatitis in 2023, i.e., enough to treat 13 individuals as the cost of one therapy amounts to approximately PLN 30,000 (EUR 6,700).
The Ministry of Justice has also criticised certain provisions in the programme pertaining to personnel training, prisoner education, program monitoring, and effectiveness assessment, which are to be carried out by a civil society organisation.

PORTUGAL ■ In March 2023, the Court of Appeal of Lisbon (Portugal) rejected the application of a prisoner with mental illness to be moved from the Caxias prison hospital to the Julio de Matos civilian psychiatric hospital, which also hosts offenders with mental health problems(8 March 2023, no. 1/22.8JBLSB-A.L1-3). The applicant was placed in the Caxias prison hospital after a measure of preventive custody was applied in the form of preventive confinement in a psychiatric hospital or similar establishment. He made his transfer request after he was assaulted by other prisoners in Caxias prison hospital. He argued that he has a medical file at the Julio de Matos hospital as he had been held there in the past. The court recalled that a decision imposing a coercive measure can be changed or revoked only in the face of supervening and attenuating circumstances, in order to safeguard legal stability, and ruled that the circumstances put forward by the applicant did not meet this criterion. The court also stated that it is not up to the defendant to choose the hospital where he will serve preventive custody or a security measure.

IMPRISONED FOREIGNERS

HUNGARY ■ In April 2023, the Hungarian government, using the power of the special legal order resulting from the Russian war in Ukraine, adopted a decree ordering that imprisoned foreign nationals found guilty of human smuggling are to be released from prison and placed under “reintegration custody” until they leave the country within three days of their release. In practice, however, the competent authorities are not actively monitoring those placed under “reintegration custody” and do not check whether they have effectively left the country. There is therefore no guarantee that released individuals will leave Hungary or will stop the human smuggling activities they were convicted of, putting refugees at risk.
Furthermore, these targeted measures create inequality with detainees not covered by this specific scheme. While the government uses the “ordinary reintegration custody,” applicable to all prisoners, less and less frequently, several foreigners convicted of human smuggling have already been released from prison.
The supposed aim is to reduce the record-high prison occupation rates (as of 31 December 2022, the prison system had an occupancy rate of 107%) by reducing the number of foreign detainees (which amounts to 15 % of the total prison population in the country).

This new measure follows the adoption of a previous decree in January 2023, regulating the transfer of imprisoned foreigners to another country to serve their sentence. However, according to the decree, a declaration of admission from the country concerned is not required, and it is possible to release a prisoner without prior notification or formal communication between Hungary and the country concerned (see our previous report covering December 2022–February 2023).

LIFE IMPRISONMENT

GERMANY ■ In March 2023, the German Federal Constitutional Court ruled that when examining lifers’ applications for parole, the competent courts must take into account the age and life expectancy of the applicant, in addition to the risk of reoffending and time already served (no. 2 BvR 117/20, 31 March 2023).
The case concerned a prisoner sentenced to life imprisonment in 1972, when he was 25 years old, for two murders in connection with a sexual offence. His applications for parole were all rejected by the District Court on the grounds that he would likely reoffend after his release, as he continued to deny the acts he was convicted of. The District Court ruled that he could be released only upon admission to a special supervised facility where he could be taken care of, but such a solution was currently lacking. The Higher Regional Court upheld the District Court’s decisions.
The Constitutional Court found these decisions to be contrary to the right to human dignity enshrined in Article 1 of the German Constitution, which obligates the state to guarantee lifers the right to a realistic hope of release, as the District Court did not take into account the prisoner’s age and life expectancy.

MOLDOVA ■ In May 2023, the ECtHR communicated a case to the Moldovan government concerning access to education for a life-sentenced prisoner (Tcaci v. Moldova, no. 55290/21, communicated on 12 May 2023). The case concerns the state authorities’ failure to execute, in a reasonable time, a court decision ordering them “to create the conditions necessary for the continuation of high school studies”, in an alleged breach of the applicant’s right to a fair trial (Article 6 § 1 ECHR), to education (Article 2 of Protocol no. 1), and to an effective remedy (Article 13 ECHR).
The applicant has been serving his sentence in Rezina Prison since 2005. He had not completed his secondary education when he was incarcerated there, and such education was not available to prisoners in this facility. He complained about this situation before a court in early 2018 and obtained a final judicial decision in his favour on 19 April 2018. As he was unable to obtain enforcement of this decision, in 2019 he brought proceedings for compensation for the damage caused by the failure of the authorities to comply within a reasonable time with the court decision. The courts dismissed these claims, holding that the authorities had fulfilled their obligations by informing the claimant of the conditions for enrolment in high school and information on the high school diploma. In September 2021, the applicant was eventually enrolled in an online study program at a Chișinău high school.

PENAL LAW

CZECH REPUBLIC ■ The Czech government is working on criminal code amendments with the aim to decrease the prison population – and the prison budget. Among the solutions proposed are the suppression of longer sentences for repeat offenders and partial decriminalisation of non-payment of maintenance payments (as a result of imprisonment, non-payers of maintenance are increasingly spiralling into debt). The threshold for defining the gravity of petty offenses (such as repeated petty theft) would also be lowered, resulting in shorter sentences or custodial sentences being replaced with a fine.
These amendments are part of broader Czech reforms aiming to decrease the prison population, as the country has a high number of inmates per 100,000 people (175) compared to other EU countries, according to 2021 Eurostat figures (the EU average is 106 prisoners per 100,000 inhabitants). According to state authorities, the new criminal code should enter into force at the beginning of 2024.

GERMANY ■ In May 2023, the Legal Committee of the German Federal Parliament approved a set of amendments to the criminal code that are still to be adopted by Parliament. A significant change concerns the rate used to convert an unpaid criminal law fine into a custodial sentence. The new rate will be one day in prison for two unpaid daily fines, while the previous rate was one day of prison for one day of unpaid daily fine.
The amendments would change the function of withdrawal clinics (Entziehungsentstalt), which provide therapy for alcohol and drug abuse in connection to criminal offences. In practice, the amendments would lower the number of people admitted to these clinics by making access to them less probable. The changes would make this possibility less attractive, because early release would be possible (in case of successful therapy) only after the prisoners have served two-thirds of their sentence (up from half of their sentence currently), either in the clinic, or part in the clinic and the other part in prison, depending on the duration.

According to experts heard during a Federal Parliament session dedicated to these amendments, there is a risk that more people with alcohol or drug dependency will end up in the ordinary prison system. They argue that there is a lack of capacity in these institutions and, according to the lawmakers, too many prisoners are being directed to these clinics – an invalid argument insofar as it is the judges, advised by medical experts, who ultimately decide on the placement in a clinic, not the prisoners themselves.

LITHUANIA ■ In April 2023, the Lithuanian Parliament adopted a series of amendments to the criminal code and related legislation which increased the threshold for damages caused by some property, economic and financial offenses that determine the seriousness of the offence. Consequently, fewer offenses will qualify as serious crimes, which impacts the length of the custodial sentence that can be imposed.
The unit to evaluate a damage is the “Minimum Standard of Living” (MSL, EUR 50). For property related offences, the threshold for qualifying an act as “serious crime” was raised from 250 MSL (EUR 12,500) to 900 MSL (EUR 45,000). Similarly, the threshold to qualify a financial offence as “serious crime” was raised from 150 MSL (EUR 7,500) to 400 MSL (EUR 20,000). In the case of smuggling, the threshold for defining a “serious crime” was raised from 250 MSL (EUR 12,500) to 900 MSL (EUR 45,000).
The amendments also allow for the use of a wide range of non-custodial sentences for certain crimes against property, as well as economic and financial crimes.
The amendments entered into force on 1 June 2023.

PRISON STAFF

POLAND ■ In May 2023, the Polish Commissioner for Human Rights (RPO) received a reply from the General Director of the Prison Service to his request for information on alleged cases of bullying of junior officers by senior officers. The request was prompted by media reports concerning the mistreatment of lower-ranking officers by their superiors at the Kłodzko prison from 2012-2018 (new recruits’ faces were beaten, had their trousers pulled down, were handcuffed, chained to a radiator, restrained, and locked in an empty cell).
The General Director provided the RPO with a summary of the actions taken in response to an anonymous complaint filed by a prison officer in 2018. Namely, a number of disciplinary measures were taken (including suspensions from duty, transfer to another facility, and dismissal from service). The penitentiary authorities have also reported the incident to the Prosecutor’s Office, who terminated the proceedings due to lack of evidence. The director of the concerned penitentiary unit filed an appeal against this decision – the case is still ongoing.
The General Director also provided information on the scale of the phenomenon. According to the provided information, there have been 13 documented cases of physical and psychological violence over the past 10 years, for eight of which disciplinary sanctions were imposed. According to the Director General, these cases are incidental compared to the number of penitentiary units and the overall number of prison officers. Efforts to address bullying are incorporated into professional training, and anonymous annual surveys are conducted to monitor and address the issue.

PORTUGAL ■ In March 2023, during a parliamentary hearing, the Director General of Reinsertion and Prison Services of Portugal warned about a prison staff shortage and about the ageing of prison guards and technicians – the average age being above 50 years. He called for solutions such as recruitments and career promotions, the latter issue being one of the reasons for the prison guard unions’ strikes. As a matter of fact, there had been no promotions for the principal guard category since 2014. The last promotions for the principal chief category took place in 2018 and those for the prison commissioner category in 2017. In May 2023, the Ministry of Justice announced 150 promotions for prison guards in 2023.

PRISONS IN WARTIME

RUSSIA ■ In May 2023, a group of Russian MPs proposed amendments to the Military Service Act (Federal Law no. 53-FZ of 28 March 1998). These amendments would allow military service contracts to be concluded with persons who have a criminal record, including convicts (except for certain offences, including terrorism, hostage-taking, illegal possession or theft of nuclear materials, state treason, espionage, mutiny, coup d’État, extremism). Consequently, convicts who have signed military service contracts would be released from their sentences. The amendments were adopted at first reading on 14 June 2023.
The proposed amendments would supplement earlier changes to the Mobilisation Act, adopted in November 2022 (see our previous report covering December 2022-February 2023), which allowed military conscription of persons convicted of serious criminal offences during the mobilisation. These legislative innovations come against a backdrop of massive recruitment of prisoners (an estimate of 40,000) by the Russian private military company Wagner and the Russian authorities to fight the war in Ukraine since the beginning of the conflict.

PROCEDURAL RIGHTS

BULGARIA ■ In April 2023, the Bulgarian Helsinki Committee (BHC) released the country’s first Self-Help Litigation Manual for Prisoners. It is composed of 12 sections addressing the most common cases of rights violations (torture and inhuman and degrading treatment, detention regime change, disciplinary punishments, transfer, healthcare, etc.), and providing concrete guidance (including model documents) on how to file a complaint before the competent body (including the ECtHR).
The manual’s launch was a success, proving that it met a need among prisoners and lawyers. Some 30-40 prisoners were present at the special release events organised by the BHC in four of Bulgarian prisons. In just a few weeks, the stock of 800 printed copies was almost exhausted.

Also in Bulgaria, administrative courts continue to award very low amounts of compensation for inhuman and degrading treatment to prisoners complaining of their detention conditions by using the compensatory remedy established by a 2017 reform adopted in application of the pilot judgment Neshkov and Others v. Bulgaria (no. 36925/10 and others, 2015). In March 2023, the Plovdiv Administrative Court also awarded BGN 400 (EUR 250) to a prisoner who had spent 76 days in degrading detention conditions (no. 2301/2022, 6 March 2023). The applicant was exposed i.a. to overcrowding, lack of ventilation which caused respiratory problems, poor state of the toilets in the cells and lack of partition, poor quality of water, infrequent change of bedding which causes the presence of bed bugs and fleas, etc. Similarly, in April 2023, the Stara Zagora Administrative Court awarded BGN 400 (EUR 250) to an applicant whose detention conditions were found to constitute inhuman and degrading treatment (no. 862/2022, 4 April 2023). The applicant had been detained for two months in overcrowded cells. He complained that in one of these cells, one of the five inmates had to sleep on the floor due to the lack of space. In another instance, he had to share an 11.2 sq. m. cell with four other inmates, meaning he had less than 3 sq. m. of personal space.
These practices suggest that the compensatory remedy is not effective within the meaning of ECtHR case law, and that the applicants remain victims of a breach of their rights.

POLAND ■ In April 2023, the Polish Commissioner for Human Rights (RPO) released his correspondence with the General Director of the Prison Service, in which he requested a revision of the procedure to submit complaints, requests, and appeals. These applications should be sent directly to the director of penitentiary facilities. Following amendments to the executive penal code adopted in 2022, applications must be filed within seven days from the date on which the concerned prison became aware of the subject of the application. If this deadline is not met, the application is disregarded, unless the delay results from circumstances beyond the prisoners’ control.
RPO teams visiting prison facilities observed that prisons have not developed internal procedures to promptly confirm the date on which applications were received, in breach of the recommendations of the General Director of the Prison Service, stating that prison officers receiving correspondence addressed to the prison director must record the receipt date on it.
The RPO proposed that officers issue detainees a written acknowledgement of the prison director’s receipt of applications. The General Director of the Prison Service opposed this solution, arguing it would impose excessive administration obligations, while the changes to the procedure introduced in 2022 aimed to limit prison bureaucracy. He maintained that the obligation for prison staff to indicate the receipt date on correspondence addressed by inmates directly to the prison director is a sufficient solution. Prison directors were therefore recalled to implement this procedure.

PORTUGAL ■ In May 2023, the Court of Appeal of Porto (Portugal) clarified the procedural requirements in cases where persons in home detention who have failed to comply with their obligations may have their home detention sentence replaced with a custodial sentence (no. 1957/19.6TXPRT-C.P1, 17 May 2023). The competent courts must hear the persons concerned, with the mandatory assistance of their lawyer, on pain of nullity as provided for in Article 119, para. c of the code of criminal procedure. They must also duly give reasons for their decisions, taking into account the consequences for the convicted persons, on pain of irregularity as provided for in Article 123, paragraph 1 of the code of criminal procedure.

RIGHT TO VOTE

BULGARIA ■ In Bulgaria, dozens of prisoners who had been barred from voting during the April 2023 parliamentary elections applied to the ECtHR claiming a violation of Article 3 of Protocol no. 1 ECHR which guarantees the right to free elections. In Bulgaria, the automatic and indiscriminate restriction of the right to vote for all convicted persons results from Article 42 § 1 of the Bulgarian Constitution.
The ECtHR found a violation of prisoners’ rights to free elections in the case Kulinski and Sabev v. Bulgaria (no. 63849/09, 2016), and in the case Dimov and Others v. Bulgaria (no. 45660/17, 2021), which involved 19 applicants. Since then, dozens of prisoners claiming the same violation have applied to the ECtHR – one case was communicated in November 2022 (Tingarov and Others v. Bulgaria, no. 42286/21, 2022).
Following a recent decision of the Bulgarian Constitution Court indicating that the constitutional provision in question cannot be interpreted in a convention-compliant manner, the Committee of Ministers of the Council of Europe declared that a constitutional amendment seems to be required to remedy the situation.

GREECE ■ In April 2023, ahead of the Greek parliamentary elections scheduled in May 2023, the Areios Pagos’ (Supreme Civil and Criminal Court) Prosecutor’s Office issued its Opinion no. 4/2023 regarding the right to vote of prisoners whose sentence included partial or full deprivation of their political rights. Because this additional penalty was abolished in the new penal code that came into force on 1 July 2019, the Prosecutor’s Office decided that it ceases to exist, even for prisoners who had been sentenced to it by a final decision before July 2019.
In practice, the previous penal code resulted in the deprivation of the right to vote for most prisoners (especially in the case of felonies). Under the new legal framework, limitations of prisoners’ political rights are regulated by Article 51(3) of the Constitution and the codified electoral legislation (Article 5(1) of Presidential Decree 26/2012), which foresee a restriction on the right to stand for election for prisoners having been irrevocably convicted of specific offenses under chapters one-to-six of the second book of the penal code or any offense under the military penal code that carries a sentence of life imprisonment or life imprisonment for any other offense.

SECURITY

BELGIUM ■ In March 2023, the Brussels Court of Appeal (Belgium) found that the strip searches with genuflection imposed on the defendants of the 2016 Brussels bombings before their transfer to court to attend their trial lacked legal basis and ordered the Belgian authorities to put an end to this practice (case RG n°2023/KR/5, 13 March 2023). The searches were carried out by police officers, responsible for their transfer to and from prison. The applicants were forced to genuflect or squat during the body search in order to allow for visual cavity searches.
The court observed that Article 28 of the Act of 5 August 1992 governing strip searches by police officers allowed them only to carry out clothes examinations. Therefore, the practice complained about lacked legal basis, and was in breach of Article 8 § 2 ECHR.

HUNGARY ■ In April 2023, the Hungarian government published a draft bill aiming to amend the Prison Act. The bill proposes an assessment scheme for detainees, whose behaviour, combined with a mechanism for awarding or deducting scores, will determine their classification and their placement in different categories of detention regime.
In an opinion addressed to the Ministry of Justice, the Hungarian Helsinki Committee raised a number of issues and argued that in its current state, without adequate safeguards and external checks and balances, the draft could result in the arbitrary application of the law by the prison administration.
In particular, neither the rules for different regime categories nor the process for awarding or deducting scores are transparent. While the draft bill says that disciplinary offences decrease a prisoner’s credit score and that awards and compliments increase it, the details as to how many scores should be awarded or deducted remain unclear. The draft suggests that the prison administration could decide the regime category rules on its own, as well as decide the number of scores to be awarded or deducted for a specific behaviour.
The final content of the draft bill (the exact mechanism for awarding or deducting scores, and the rules applicable to different regime categories) is yet to be determined as it has not yet been submitted to Parliament.

SPAIN ■ In March 2023, following a series of demonstrations organised in Catalonia (Spain) by prison officers’ unions to denounce an increase in aggressions against prison officers (including the occupation of the lobby and offices of the Brians II prison), the Catalan Prison Administration and several unions (UGT, CESIF, CCOO, Intersindical and ACAIP) signed an action plan to improve security in Catalan prisons.
The action plan includes increasing the number of prison officers by 350 over the next two years in Catalonia and setting up reinforced security cells in special closed-regime departments where violent prisoners are held, so that inmates cannot use parts of the cell to carry out aggressions. The document also includes two controversial measures: the installation of video cameras on prison officers’ uniforms, similar to those already worn by the Catalan regional police force (Mossos d’Esquadra), and the use of aerosol sprays in enclosed spaces prior to the entry of intervention teams. The action plan does not contain details as to how these measures will be implemented.
The majority of human right NGOs in Catalonia consider it unacceptable that the signed agreement mixes legitimate labour measures, such as an increase of the workforce, with penitentiary policies affecting the fundamental rights of persons deprived of their liberty. Furthermore, NGOs stress that the action plan was signed without previously informing the Parliament of Catalonia and without having informed or taken into account the position of human rights defenders. In particular, as regards the use of aerosols in closed spaces, NGOs have demanded its withdrawal and have pointed out that both the ECtHR (Tali v. Estonia, no. 66393/10, 2014) and the CPT have already warned of its harmful effects, particularly in relation to persons with cardiorespiratory complications, and have stressed that, in any case, they cannot be used in closed spaces.

Also in Spain, the Catalan Government has concluded a contract with the private security sector company Inetum Catalunya S.A. to develop an AI-based system to anticipate incidents within the Mas Enric Prison. The company has experience in developing biometric detection projects in security environments such as airports.
The system will use facial and movement recognition in specific areas of the prison and will target prisoners at risk of escape. Based on data analysis, it will establish profiles of inmates presenting a risk of committing an incident (e.g., introducing prohibited substances or objects in the prison). The biometric technology will enable prison officers to analyse non-verbal expressions, attitudes or behaviours indicative of illicit conduct after family visits (including of an intimate nature).
The system is intended to enhance the effectiveness of the control carried out by prison officers, which is highly dependent on each officer’s knowledge of the prison context and prisoners concerned.
The main human rights NGOs of Catalonia criticised the contract, arguing that implementing criminal profiling technology in prisons will seriously infringe on the fundamental rights and already limited privacy and intimacy of prisoners.

UNITED KINGDOM ■ In April 2023, amendments to the rules governing discipline in prisons and young offender institutions entered into force in the United Kingdom. The expressed intention of these amendments is to give power to Independent Adjudicators (district judges competent in the matter), so that if they consider that a disciplinary charge has been inappropriately referred to them they can refer the matter back to the governor of the prison to be dealt with there.
The amendments also explicitly provide that Adjudicators must themselves consider whether the test for referral (whether the charge is so serious that additional days could be awarded for the offence if the prisoner is found guilty, or whether referral is otherwise “necessary or expedient”) is appropriate.
The aim is to avoid the problem that arose in the case of Kane (Kane, R (On the Application Of) v The Independent Adjudicator [2021] EWHC 673 (Admin) (23 March 2021)), where a finding of guilt by an Independent Adjudicator was held to be unlawful on the basis that the Adjudicator had no jurisdiction – because there was no evidence that the governor had properly considered whether the referral test was met, and as the rules at that time did not provide any authority for the Adjudicator to look at that question.

SENTENCE ADJUSTMENT

RUSSIA ■ In March 2023, the Russian Constitutional Court provided guidance on recalculating prison sentences for prisoners who have been mistakenly sent to a facility with a stricter regime that was provided for by law in their specific case (e.g., a general regime colony instead of colony-settlement – case no. 8-P, 15 March 2023). The court ruled that if a higher court establishes that trial courts made such an error, the prison sentence must be reduced based on the length of the sentence served in the stricter facility and the coefficient used to deduct pre-trial detention from the final sentence (one day of pre-trial detention for 1.5 days of post-conviction detention in the general regime colonies and for two days in a colony-settlement).

Also in Russia, in April 2023, the authorities amended Article 53.1 of the criminal code, lifting the age limit above which a sentence of compulsory works cannot be imposed (55 years for women and 60 years for men). The amended article refers to the retirement age established by Russian law (65 years for men and 60 for women) and specifies that, in addition to reaching that age, a person shall be declared “unfit for work for medical reasons”. The penalty of “compulsory work” was introduced in Russia in 2011 as an alternative to imprisonment. The amendments essentially allow the authorities to use a broad category of Russian prisoners (inmates older than 55, which make around 6% of the prison population) as a readily available labour force, replacing their sentences of imprisonment with compulsory works. The amendments echo plans of the Russian Penitentiary Service (FSIN) and the Ministry of Justice to actively involve prisoners in the execution of the FSIN state and private commercial contracts.

UNITED KINGDOM ■ In March 2023, the High Court of Justice of the United Kingdom ruled that amendments to the Parole Board Rules 2019, adopted in 2022 and preventing report writers and witnesses (prison officers, probation officers and psychologists) from presenting a view or recommendation as to the prisoner’s suitability for release or move to open prison conditions, were unlawful (R (Bailey) v Secretary of State for Justice and Parole Board [2023] EWHC 555 (Admin) (15 March 2023)). According to the court, the purpose of the 2022 amendment was to ensure that prison and probation officers did not dissent from the Secretary of State’s view of a case. The court held that this “attempt by a party to judicial proceedings to influence to his own advantage the substance of the evidence given by witnesses employed or engaged by him” was incompatible with Article 5(4) ECHR. In so doing, the High Court confirmed the board’s status as a court and emphasised the need for its procedures to be free from improper executive interference.
As a result of this judgment, the Prison Board Rules were amended in April 2023 to allow report writers, where they feel able, to provide an opinion as to whether a prisoner might meet the test for release or move to open conditions. The Rules still allow the Secretary of State for Justice to “present an overarching view on the prisoner’s suitability for release in accordance with the statutory release test” (in the new paragraph 2 in Part A of the Schedule).
In a “postscript” to its March judgment, the court raised the issue as to whether witnesses before the Parole Board who were prevented from answering questions as to suitability for release were in contempt of court and if so, how this should be addressed. In a subsequent judgment issued in April 2023, the High Court confirmed that the board should be considered a “court” for the purposes of the Contempt of Court Act 1981, but that its statutory framework does not permit it power to punish contempt (R (Bailey) v Secretary of State for Justice and Parole Board [2023] EWHC 821 (Admin) (05 April 2023)). Accordingly, contempt by witnesses giving evidence before the board must be punished in the High Court under part 81 of the Civil Procedure Rules. However the court further considered that it had insufficient evidence as to how the guidance to the rule change was drafted and approved and so ordered the Secretary of State to file further evidence for it to decide “whether we should initiate contempt proceedings against any person or persons and/or give further directions as necessary” (paragraph 65). Following the adoption of the contentious rules, witnesses before the Parole Board were prevented from answering questions as to suitability for release for about six months, affecting several thousand cases.

Also in the UK, in a judgment handed down in April 2023, the Supreme Court gave guidance on the proper ambit of the risk assessment that the Parole Board should perform on prisoners serving determinate sentences applying for early release (R (Dich) v Parole Board and Secretary of State for Justice & R (Murphy) v Parole Board and Secretary of State for Justice [2023] EWHC 945 (Admin) 26 April 2023). The applicants were challenging the guidance in force at the material time, stating that the risk assessment carried out by the Parole Board must also take into account the risk posed after expiry of the sentence.
While the court confirmed this point (which is problematic on a conceptual level), it insisted that the Parole Board can only properly refuse release “if that risk can be addressed by continued confinement” (para. 14). In other words, if continued imprisonment up to the sentence expiry date will do nothing to reduce risk after the sentence has expired, it is not necessary for public protection to continue to detain the prisoner. The Supreme Court made detailed suggestions for rewording of the guidance so that it reflects its judgment.

Lastly, the UK Supreme Court reviewed in April 2023 the Parole Board guidance on unproven allegations made about a prisoner (R (Pearce) v Parole Board [2023] UKSC 13, 5 April 2023). The applicant complained that his application for release was rejected by the Parole Board based on unproven allegations made against him, in accordance with the guidance in force at the time. Although the court considered the guidance to be lawful (disagreeing with the lower court decision that found it to be unlawful), it suggested that it should be redrafted to reflect the need to make factual findings where possible and to allow prisoners to state their position on the disputed facts, to ensure procedural fairness.
While acknowledging that in both civil and criminal trials the role of the judge is to determine facts, the Supreme Court noted that in matters concerning risk assessment, a decision maker can consider the possibility that allegations that have not been established as fact may be true and could be relevant to the entirety of the material available. It remains a source of concern that a general legal principle concerning the requirement to make factual findings can be displaced in the context of decisions affecting liberty, and arguably does not give sufficient weight to the distinction between punitive and preventative detention.
Furthermore, the Supreme Court noted that the Parole Board lacks directive powers in relation to evidence and this can impact its ability to reach a factual conclusion. One might expect the court to comment on the extent to which the absence of these powers impedes fair and efficient decision making, as has been the case in past judgments (see e.g., R v Vowles [2015] EWCA Crim 45). However, in this case the absence of these powers was noted only in relation to the extent that it prevented the board from pursuing a more rigorous – and fair – fact finding exercise.
A welcome element of the judgment is the reference to the consequences of the board’s decision on the prisoner’s interest and that the hardship they may suffer, if confinement is not actually necessary to protect the public, is a relevant factor. Although a prisoner’s interest is largely reflected in the requirements of procedural fairness, it is an important recognition that this interest exists and is not extinguished by public protection considerations.

SUICIDE

SPAIN ■ In April 2023, the Basque Prison Administration (Spain) adopted a new protocol for suicide prevention in prison. According to the protocol, each prisoner will be evaluated upon entry in prison with an interview aimed at determining if their suicidal risk is high, medium or low. Specific measures will be proposed, depending on the situation, ranging from being placed in a specific cell to being accompanied (24 hours a day if necessary) by a “supportive inmate” or being transferred to a psychiatric hospital. The protocol lists signs to help identify prisoners with suicidal thoughts (e.g., when prisoners give away their belongings or change their behaviour or routine) or factors that increase the risk of suicide (e.g., lack of family support, depression or alcohol consumption disorder, a very long sentence, entering prison for the first time, etc.).
A significant measure in the protocol is the reinforcement of the role of so-called “supportive inmates” tasked to assist and accompany inmates with suicidal tendencies, who will receive specific training and remuneration for this task (previously they were only entitled to specific prison benefits). The Basque Prison Administration aims at training 2-3 % of the prison population as “supportive inmates”.
The protocol updates the 2014 Suicide Prevention Protocol issued by the Spanish Secretary General of Penitentiary Institutions and references the Suicide Prevention Pilot Programme of the Zaballa Prison (Basque region), as well as the protocol for suicide prevention established by the Catalan Prison Administration.

TORTURE & ILL-TREATMENT

UKRAINE ■ In April 2023, the Ukrainian Cabinet of Ministers adopted a new procedure governing force-feeding and detention conditions of convicts and persons in custody who refuse to eat. This new procedure is based on two laws adopted in July 2022 (nos. 2428-IX and 2429-IX), introducing the practice of force-feeding into the criminal executive code (see our previous report covering April-July 2022).
While the UN Committee against Torture and the UN Special Rapporteur on Torture have found that force-feeding prisoners violates the prohibition of torture and ill-treatment, the ECtHR accepts it in life-threatening situations. The ECtHR nevertheless found violations of Article 3 ECHR in cases of force-feeding as in Yakovlev v. Ukraine (no. 18412/05, 2012) and Nevmerzhitsky v. Ukraine (no. 54825/00, 2005): the newly adopted laws and procedure were intended to adapt the national legislation in the light of these judgments.
However, a series of deficiencies in the new legal framework suggest that it falls short of ECtHR and CPT standards (see i.a. CPT/Inf (2009) 11, §14).
In particular, the new legal framework: does not regulate the involvement of prison guards and/or medical personnel (it only requires the supervision of a doctor); does not specify how people involved in force-feeding should overcome a person’s resistance and immobilize them; does not require the drawing up of a protocol enabling for the photo or video recording of all stages of the procedure; does not require a prompt and independent investigation into the complaints of persons on hunger strikes (see i.a. Makharadze and Sikharulidze v. Georgia, no. 35254/07, §§ 82-83, 2011).