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.
CONTACT WITH THE OUTSIDE WORLD
In Bulgaria, recent administrative court judgments consolidate a case law depriving prisoners of a judicial review of orders imposing disciplinary punishments other than solitary confinement.
PRISONS IN WARTIME
PRIVATE AND FAMILY LIFE
SPECIAL CATEGORIES OF PRISONERS
TORTURE & ILL-TREATMENT
CONTACT WITH THE OUTSIDE WORLD
GERMANY ■ In November 2023, during a hearing at the Hamburg Parliament, the Hamburg State Government confirmed that prisoners have been occasionally forbidden to contact a prisoners’ union (Gefangenengewerkschaft/Bundesweite Organisation, GG/BO) because the phone number used to contact the organisation seemed to belong to a journalist.
The prison administration argued that prisoners’ communication with the GG/BO is not banned in general, and that the prisoners concerned could contact the organisation by email.
LITHUANIA ■ In October 2023, the Director of the Prison Service adopted an order to implement the pilot project “Secure mail”, aiming to limit the entry of drugs and psychotropic substances in prisons.
The project was implemented in Vilnius prison, between 16 October and 31 December 2023. It concerned remand and convicted prisoners under enhanced supervision, detained for drug-related offences or for other offences but who have been found to be taking drugs while in detention. Convicted prisoners serving their sentence in an open or semi-open prison, who have the right to leave the facility unescorted to go to and from a place of work, education, or reintegration, were not subject to this temporary procedure.
During the project period, participating prisoners were given only scanned versions of letters addressed to them (except for letters sent by their defence counsel, state and municipal authorities and international organisations having jurisdiction or competence to receive applications from prisoners serving sentences in the country). Under the project’s newly designed procedure, an envelope containing a letter addressed to a prisoner must be opened and scanned by a prison officer in the prisoner’s presence, without being read, and is then printed and given to the prisoner. The envelope is destroyed before delivering a printed version of the letter.
The project’s results will be analysed to determine whether they justify a change in the legal framework governing prisoners’ correspondence.
PORTUGAL ■ In November 2023, the government launched a public invitation to tender for the installation of fixed telephones in prison cells. Prisoners will be able to call pre-approved numbers for a duration set by the prison administration, at their own costs.
The decision to generalise the installation of fixed telephones in cells was made following the positive evaluation of a pilot phase during which more than 800 telephones were installed in five prisons.
The installation will not include the special security Monsanto prison, in which phone calls are made by the prison staff.
BULGARIA ■ Recent administrative court decisions show divergent approaches to the issues of cells infested with vermin and prisoners being bitten by bedbugs.
On the one hand, the Montana Administrative Court ordered the governor of the Boychinovtsi Prison Hostel to clean the cell, clothes and mattress of an applicant who complained that his cell was infested with bedbugs and cockroaches and that he had been bitten by bedbugs (no. 583/2023, 6 October 2023). In so doing, it dismissed the prison administration’s claim that they had disinfected on a regular basis, since it had been ineffective. The applicant had seized the court through the preventive remedy whereby prisoners can complain of their detention conditions.
On the other hand, the Burgas Administrative Court, acting as a first-instance court, rejected a compensation claim in a similar case (no. 1159/22.11.2023, not available online). The applicant, held in the Debelt Prison Hostel, complained of bedbug bites. He provided medical documents indicating he was following a treatment for skin dermatitis, rashes and itching on his body, and a witness testified during the trial to support his claim.
However, the court, building on the prison administration’s submission that regular disinfection had been carried out at the material time, concluded that “it cannot be considered that the reason for the presence of insects is in a direct causal relation with the unlawful inaction of the defendant” and dismissed the claim.
HUNGARY ■ In October 2023, the government submitted a new action report to the Committee of Ministers of the Council of Europe, in which it argued that it has remedied to the problems in detention conditions identified by the European Court of Human Rights (ECtHR), and requested the closure of leading cases on this matter – the Varga and Others v. Hungary pilot judgment (no. 14097/2012, 2015), and the group of cases István Gábor Kovács v. Hungary (no. 15707/10, 2012).
In the Varga pilot judgment, the ECtHR found that there had been a violation of the applicants’ rights because of structural prison overcrowding impacting their detention conditions, as well as a lack of domestic preventive and compensatory remedies in this respect.
In a communication preceding the government’s, the Hungarian Helsinki Committee disputed that the issues highlighted in the Varga case have been resolved and that the new compensation mechanism, introduced following the pilot judgment’s adoption, complies with the ECtHR’s findings.
BULGARIA ■ In recent decisions, the Sofia, Plovdiv and Burgas administrative courts have rejected appeals filed by prisoners against prison governors’ orders imposing disciplinary punishments other than solitary confinement (see, for Sofia: nos. 9127/23.10.2023, 9472/02.11.2023, 9507/03.11.2023; for Plovdiv: no. 2319/10.10.2023; for Burgas: no. 2593/13.10.2023. None of these decisions are available online).
The courts argued that such orders are not eligible for judicial review and can only be appealed before the higher administrative authority, i.e. the prison governor (where the sanction was imposed by a prison hostel governor) or the Director General of the Central Prison Administration (where the sanction was imposed by a prison governor), none of which are independent from the prison administration. The courts based their decisions on the fact that a judicial review is explicitly provided only for sanctions of disciplinary punishment in the Execution of Punishments and Pre-Trial Detention Act.
These decisions constitute a worrying trend, as recently other administrative courts ruling on similar cases allowed for a judicial review of such disciplinary punishment on the basis of Article 120, para 2 of the Constitution, which provides that “citizens and legal entities shall be free to challenge any administrative act which affects them, except those listed expressly by the laws” (see our previous issue covering June-August 2023).
CZECH REPUBLIC ■ A Constitutional Court resolution confirms that non-smoking prisoners must be accommodated separately from smoking prisoners to preserve their health (resolution no. IV.ÚS 1623/23). The resolution refers to a case filed in 2007.
Although it closes the case, it should not bring major changes in the current detention system, as smokers and non-smokers are already detained separated from one another by virtue of a decree.
POLAND ■ In November 2023, the Commissioner for Human Rights (RPO) raised the issue of nurses deciding whether prisoners are fit for transport, in violation of internal prison regulations stipulating that this is the responsibility of a doctor. The RPO was informed of the situation by nurses themselves, who, because of medical staff shortage, were verbally instructed to conduct the assessment.
According to the RPO, this violates both internal transportation regulations and the regulation of the Ministry of Justice on the provision of healthcare services for people deprived of liberty, which provides that prisoners must undergo a comprehensive medical examination before being transported or released.
Also in Poland, in October 2023, the Ministry of Justice and the Prison Service signed an agreement regarding the implementation of a treatment program for chronic hepatitis C prison. The program involves promptly qualifying HCV-infected inmates for therapy with direct-acting antiviral drugs, administering such drugs, monitoring the therapy, and assessing the scale of virus removal to evaluate the effectiveness of the treatment. The agreement also stipulates that inmates arriving at penitentiary units will receive instruction by the medical staff on the prevention of infectious diseases.
SPAIN ■ The Spanish Society of Legal Psychiatry (SEPL) and the Spanish Society of Penitentiary Health (SESP) issued a white paper on “Healthcare for People with Severe Mental Disorders in Spanish Penitentiary Centres” intending to provide decision-makers, the scientific community and the broader public with information on achievements and challenges concerning the treatment of prisoners with mental health disorders, and to formulate recommendations.
Regarding the organisation of healthcare in prison, the white paper notes that despite a 2003 law providing for the integration of prison healthcare at regional level (including mental healthcare) into the general healthcare system, the national General Prison Administration remains competent in 14 of Spain’s 17 regions (only Catalonia, the Basque country and Navarre have fully integrated prison healthcare into their regional healthcare system). To implement the principle of equivalence of care, the white paper calls for a full implementation of the law in the remaining regions.
The white paper is also very critical of the two existing prison hospitals (located in Seville and Alicante), in which 393 people, who committed a criminal offence but were deemed irresponsible or partially irresponsible for their actions, are currently held based on a judicial decision.
First, regarding the geographical dispersion of the facilities, the white paper argues that having only two facilities of this type in the country does not allow people detained away from their community to remain in contact with their family environment. This in turn can lead to social isolation, deterioration and chronicity, and compromises adequate response to therapeutic interventions and recovery.
Second, the white paper notes that the facilities’ organisation is penitentiary in nature, risking deviation from standard clinical practice. The security-focused operation creates a high risk of interference by the prison administration with the autonomy and independence of healthcare professionals in their clinical decision-making. And the lack of psychiatrists in both establishments forces some medical staff to act both as therapists and forensic experts for the same patient, which is detrimental to the patient-physician relationship.
This leads the white paper to consider that prison psychiatric hospitals do not appear to be the “most appropriate” place to detain people deemed irresponsible for their actions. These people “have similar psychosocial profiles to other people treated in the community” and would therefore benefit from treatment by the competent regional healthcare system and close to their usual place of residence (p. 143).
Even more so since the aim of these facilities is both to treat and stabilise disorders and to comply with the custodial security measure imposed, but inmates are sometimes kept longer than necessary (for example, when the therapeutic objectives have already been achieved and they could be transferred to another appropriate facility, this transfer cannot take place because there are no such facilities in the country at present).
GERMANY ■ Following a Parliamentary request, the Berlin State Government provided figures on transgender, intersex and non-binary prisoners on a monthly basis between September 2022 and November 2023. According to the data from the period in question, on average around 0.1% of prisoners (if we use the number of 4,200 prisoners held in the state on 13 December 2023 as a reference) were detained in a prison establishment that doesn’t correspond to their biological sex assigned at birth (e.g. prisoners assigned male gender at birth being held in women’s prisons).
In September 2022, there were four female-identifying prisoners (assigned male gender at birth) held in women’s prisons. At the same time, one prisoner self-identifying as female (assigned male gender at birth) was held in a men’s prison and one prisoner self-identifying as male (assigned female gender at birth) was held in a women’s prison. In November 2023, out of seven prisoners self-identifying as female (assigned male gender at birth), two were held in men’s prisons and five in women’s prisons.
POLAND ■ In September 2023, the Helsinki Foundation for Human Rights (HFHR) filed an amicus curiae in the case of a woman sentenced to life imprisonment for the murder of her three-year-old daughter. The court of first instance limited the applicant’s possibility to apply for conditional early release until after she had served 50 years of her sentence. In principle, a person sentenced to life imprisonment is eligible for conditional release after serving 30 years of their sentence, but in particularly justified cases the court can set stricter limits on the convicted person’s eligibility.
In its amicus curiae opinion, the HFHR drew attention to the standard established by the case law of the European Court of Human Rights (ECtHR), which requires that lifers have a realistic possibility of release if there are no penological grounds to justify their continued detention (see Vinter v. the United Kingdom [GC], no. 66069/09, 2013).
In December 2023, the second instance court overturned this decision on the grounds that it would breach the ECtHR’s case law in this area and ruled that the applicant will be able to apply for conditional early release from her sentence of life imprisonment under the general rules set out in Article 78 para. 3 of the Penal Code, i.e. after 30 years.
BELGIUM ■ In September 2023, the Central Prisons Supervisory Council (CCSP) published its annual report for 2022. The report focuses on prison overcrowding, a persistent issue in Belgium for years, and criticises recently introduced measures that risk further aggravating the phenomenon (increased incarceration, extension of the prison estate capacity).
The CCSP also calls on the government to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT, signed in 2005) to provide the country with a fully-fledged National Preventive Mechanism that is currently lacking.
The report also explains the use of the complaint procedure recently introduced in Belgian law, both quantitatively (2,394 complaints were registered in 2022, a 33% rise since 2021) and qualitatively (it regretted in particular that prison directors refuse “almost systematically” to attend complaints commission in some Wallonia and Brussels prisons, which “is difficult not to interpret as ‘a silent but persistent opposition to the right to complain for reasons of principle’”).
Lastly, the report informs on opinions provided by the CCSP to national, European, and international bodies on a number of issues (its own mandate, prison law reform, implementation of judgments of the European Court of Human Rights, etc.).
GERMANY ■ In a hearing before the North Rhine-Westphalia Parliament that took place in September 2023, the Ombudsman (Strafvollzugsbeauftragter) explained that his office had noticed a decrease in the number of complaints received from prisoners, and that some letters addressed to him were opened by the prison administration. He is investigating the possibility that prison staff are pressuring prisoners wishing to complain.
POLAND ■ In September 2023, the National Preventive Mechanism (NPM) released its annual report for 2022. The report criticises several changes introduced in 2022.
First, the reduction in the frequency of phone calls available to prisoners (in practice limiting them to one phone call per week – see our previous issue covering March-May 2023) led to protests among prisoners, resulting in an increase in the number of prisoners categorised as posing a threat to the establishment’s security.
Second, the NPM noted the widespread practice of using handcuffs preventatively outside of cells and the creation of designated areas for inmates and prison staff in common rooms (including rooms in which prisoners meet with educators or psychologists). Not only did this unjustifiably create the suspicion that all prisoners pose a threat, but it also led to a decrease in prisoners’ interest in interacting with educators or psychologists – which can, in practice, lead to an escalation of tensions and pose a threat to the security of the prison unit.
The report also draws attention to inadequate detention conditions in prisons (lack of personal space, lack of access to sunlight, lack of privacy in sanitary corners, yard architecture limiting prisoners’ visibility of the outside world, lack of access for prisoners with disabilities, etc.), and to a wide range of persisting issues (lack of judicial control of strip search decisions and disproportionate use of coercive measures, limited range of recreational activities, lack of alternative communication methods for prisoners who do not speak Polish, lack of standardised procedure for mandatory health check-ups upon facility admission, lack of medical staff, lack of treatment for transgender, chronically ill, disabled or elderly prisoners).
BELGIUM ■ As of 1 September 2023, prison sentences ranging from six months to two years are to be effectively served in prison and cannot be adjusted ab initio. A year earlier, a similar change affected prison sentences between two and three years (see our previous issue covering April-July 2022). Both policy changes result from the implementation of the 16 May 2007 law on the external status of prisoners.
The enforcement of sentences of up to three years’ imprisonment risks further aggravating the already high level of prison overcrowding that persists despite a landmark judgment handed down by the European Court of Human Rights almost a decade ago (Vasilescu v. Belgium, no. 64682/12, 2014).
In a decision dated 21 September 2023, the Committee of Ministers of the Council of Europe, examining the progress made in the implementation of this judgment, urged the authorities to take steps to improve detention conditions, reduce overcrowding, and reduce the “number of cases of imprisonment provided for by law”. They also suggested putting in place a preventive remedy capable of ending prisoners’ rights violations on account of poor detention conditions through prison transfer or releases (see also the Central Prison Supervisory Council’s statement following the Committee’s assessment of the situation).
FRANCE ■ In September 2023, the National Preventive Mechanism (CGLPL) issued an opinion on prison overcrowding, which has persisted in the countries for years. Based on the observation that the prison population has reached a new historical record (74,237 prisoners for a total capacity of 60,629 in the prison estate), and that adopted measures have failed, the CGLPL urged the authorities to consider prison overcrowding “the subject of a genuine public policy, with its own long-term resources” and to reconsider “the place of imprisonment in the penal system”.
She argued that a binding mechanism to regulate the prison population should be adopted to put an end to overcrowding in the most affected facilities and regretted that such a mechanism is not mentioned in the Ministry of Justice programming law for 2023-2027.
In October 2023, the Court of Auditors published a report on the same topic. In this report, the court argued that the measures taken so far to tackle prison overcrowding (mostly caused by a tougher penal response, speedy proceedings and a high pre-trial detention rate) have had a limited impact: the expansion of the prison estate “has never been able” to solve the issue in the long term, the interdiction of prison sentence of less than six months has led to an increase of the length of prison sentences, and the promotion of alternatives to detention has mostly had a “penal net-widening effect”.
While observing that non-binding prison population regulation mechanisms (experimented locally) have not brought significant results, the court does not explicitly support the adoption of a binding mechanism – which is “a matter of democratic debate”. The report also provides a critical analysis of the increased differentiation of detention regimes and sentence adjustment mechanisms – both impacted by prison overcrowding and prison inflation.
PRISONS IN WARTIME
FRANCE ■ The Court of Cassation rejected an extradition request issued by the Ukrainian government, because of the changes made by martial law to the legal framework for pre-trial detention, notably Article 615 of the Code of Criminal Procedure (no. 23-82.220, 7 November 2023).
The court noted that the detention of defendants can be ordered by “authorised agents” (not only by judges) and that, if the circumstances of war so require and if martial law is in force, the investigation can be suspended – and the detention prolonged by decision of the prosecutor.
Considering that the war is “likely to profoundly disorganise the judicial system and prevent the progress of the proceedings”, the court found that the requested person “would be exposed to a real risk of flagrant denial of justice” if extradited to Ukraine.
RUSSIA ■ In October 2023, a decree amending the Regulation on Military Registration (Decree of the Government of 27 November 2006 no. 719) was adopted by the Russian government (Decree of the Government of the Russian Federation of 27 October 2023 no. 1789). The new decree allows the military registration of prisoners, which was previously prohibited. The list of prisoners to be registered shall be prepared by the prison administration. This amendment will enable the continuation of Russia’s policy of mass conscription of prisoners into the army.
The full extent of this recruitment is difficult to establish. However, based on figures provided by the Deputy Minister of Justice in October 2023, indicating that the number of prisoners decreased by 54,000 since November 2022, one can estimate that dozens of thousands of prisoners have been conscripted. According to recent reports from relatives of prisoners who were recruited by the Ministry of Defence for a period of six months, recruits were forced to sign contracts for another six months of service, and that those who refused were taken to an illegal prison in Zaitseve, in occupied Ukraine (Luhansk Oblast).
Also in Russia, an early draft of the regulation on Storm Z battalions (semi-official formations composed of convicted prisoners) leaked in October 2023 provides details on their history and functioning. The content of the regulation currently in force is not known.
The battalions were formed in October 2022 and are exclusively composed of convicts (mixed units comprising prisoners and regular servicemen are prohibited). Each Storm Z squad comprises 100 prisoners, who are trained for ten to 15 days before being sent to the front. Primary medical assistance to the Storm Z troops is to be provided only by “self- and mutual aid”. Prisoners are allowed to leave the area of the military conflict only upon the expiry of their contracts and in case of serious injury. The regulation also prescribes that prisoners’ corpses should be stored in morgues separately from the corpses of regular servicemen. It further authorises commanders of Storm Z units to use firearms to reinstate discipline and order in cases of open disobedience.
PRIVATE AND FAMILY LIFE
UNITED KINGDOM ■ In November 2023, the High Court handed down a judgment clearly outlining the criteria prisoners applying for in vitro fertilisation should meet, according to the Prison Access to Fertility Treatment Policy (R (Walker) v Secretary of State for Justice  EWHC 2715 (Admin), 8 November 2023). The policy, which was adopted following the European Court of Human Rights’ judgment Dickson v. the United Kingdom [GC] (no. 44362/04, 2007), is not published online but can be sent to prisoners on request.
The case concerned a prisoner serving an extended determinate sentence for a violent offence with a parole eligibility date in 2027 and a sentence expiry date in 2031. His application relied upon the low risk of conception after release, the satisfactory arrangements for care of the child by his partner outside of prison and the financial ability of that partner to pay for the treatment. He added that previous egg freezing attempts had been unsuccessful.
His application was rejected by the Secretary of State. While the reasons for refusing the application referred to there being some uncertainty whether the clinic would proceed with the treatment and the alternative options of egg freezing or sperm donation, the central reasoning related to the need to maintain public confidence in the criminal justice system. The Secretary of State relied upon the serious nature of the current conviction linked to an established pattern of similar behaviour and the potential risk of harm this could create for any child.
The applicant argued that this decision was irrational, as it failed to consider all of the medical evidence or to consider the likely risk level upon release; that it was procedurally unfair as it raised medical considerations that he had not been given the chance to address; and that if either of these grounds succeeded, the decision would not be in accordance with Article 8 of the European Court of Human Rights.
The court rejected the applicant’s claims. Regarding the first ground, it recalled that under the policy the burden rested with the applicant to establish the relevant medical grounds were satisfied and that the position reached in relation to the predictive exercise of risk assessment was rational. According to the court, this condition had not been met.
Regarding the second ground, the court considered that the policy to be clear enough for the prisoner to make any necessary representations and that further enquiries were unlikely to have provided greater clarity.
The third claim was dismissed as the interference with the applicant’s right to respect for his private and family life was deemed proportionate. The court declared that the applicant, as a “necessary consequence” of his imprisonment, “must be taken to have forfeited the absolute right to have a child with [his partner] at a time and by a method of his choosing” (para. 52).
HUNGARY ■ In October 2023, a bill to introduce a reward-punishment credit system abolishing the current prisoners’ classification schemes was introduced to Parliament. Under the new system, credits will be given or withdrawn from prisoners depending on their behaviour (e.g. prisoners participating in reintegration programmes will be entitled to extra-credit, while prisoners committing disciplinary offences will have their credit reduced). A prisoner with higher credit will be entitled to extra telephone calls, a milder detention regime or prison leaves. Conversely, a prisoner with lower credit will be detained under stricter conditions.
The bill was passed and the amendments will be effective from 1 March 2024. Detailed rules on the functioning of the new system will be established by decree.
LITHUANIA ■ In November 2023, the Parliament approved the launch of the procedure for examining amendments to a series of laws (Penal Code, Code of Criminal Procedure, Law on the Execution of Pre-trial Detention, Probation Law, see also the explanatory memorandum). Among other things, the reform would enable the transfer of prisoners held in an open regime prison to a semi-open one when they fail to return to their detention facility within the prescribed time limits without valid reason.
The reform would also make prisoners serving sentences for crimes against humanity and war crimes ineligible for parole. It would also allow a prisoner’s employer to transfer their salary directly to their personal account (if they are authorised to use the money), instead of the prison account as is currently the case.
Also in Lithuania, in November 2023, the Ministry of Justice announced a modification of its project to open a probation service and halfway house for 25 prisoners in the town of Domeikava (Kaunas district) in early 2024. The Minister was forced to compromise following protests from hundreds of locals.
No probation service will be established, and the halfway house’s functioning will be altered. First, it will accommodate no more than ten prisoners during the first six months of its operation (additional consultations will take place after this period to assess whether this rule should be prolonged or modified). Second, all accommodated prisoners will be placed under electronic monitoring, additional CCTV cameras will be installed in its surroundings, and entries and exits from the halfway house will be under enhanced supervision. Third, the Prison Service was instructed to prepare legislative amendments so that no person convicted for sexual or violent crimes and crimes against minors will be accommodated in the halfway house.
BELGIUM ■ In October 2023, a second transition house opened in the Gentbrugge district of Ghent. Transition houses are small scale facilities (for around 15 prisoners) for prisoners serving long sentences who are nearing the end of their sentence, with a view to facilitate their reintegration into the community through comprehensive support, promotion of independent living and increased freedom of movement.
Transition houses have faced a number of criticisms. These criticisms stem from their legal status: governed by the 2006 Act on the external status of prisoners, they are not considered to be an alternative to ordinary prisons, and placement in a halfway house is therefore defined as a means of serving a sentence (as opposed to a regime of detention). However, the decision to place a prisoner in a transition house is not made by a judge but by the prison administration, while some sentence adjustments (such as conditional release) are decided by a judge.
Furthermore, as halfway houses are not considered to be a specific type of prison, people held there do not benefit from the same rights as prisoners held in penitentiary establishments (first and foremost the right to complain and the right to access to prisoners’ social insurance).
The competence of the Central Prison Supervisory Council (CCSP) to carry out monitoring visits is also disputed (see the CCSP opinion following visits in transition houses and discussing the Ministry of Justice’s legal interpretation that transition houses do not fall within its mandate).
Lastly, transition houses are run by a private operator, which is causing debate in the country. In June 2022, a halfway house had to close after the private operator decided to withdraw from the project (see our previous issue covering April-July 2022).
A third transition house is set to open in Leuven. The first one opened in Mechelen (Antwerp province) in 2022.
UNITED KINGDOM ■ In the United Kingdom, the Secretary of State for Justice adopted new directions to the Parole Board on the transfer of indeterminate sentence prisoners (ISP) to open conditions.
The new directions state that the Secretary of State will accept a recommendation for transfer only where the three following cumulative conditions are met: (a) during the prisoner’s sentence they have made sufficient progress in addressing and reducing risk to a level consistent with protecting the public from harm (in circumstances where the prisoner in open conditions may be in the community, unsupervised under licensed temporary release); and (b) the prisoner is assessed as low risk of abscond; and (c) there is a wholly persuasive case for transferring the prisoner from closed to open conditions. The Parole Board should be satisfied on the first two criteria before making a recommendation for such a transfer, while the third criterion is for the Secretary of State to determine.
The new directions mark a return to the test that was in place before the 2022 changes, which required such a transfer to be recognised as “essential” by the Secretary of State and the Parole Board, and allowed the Secretary of State to refuse a transfer if it would undermine public confidence in the criminal justice system. Given the vagueness of this criterion, the High Court of Justice held in a recent case that “it is entirely unsurprising that [it…] has […] been withdrawn” (R (Zenshen) v Secretary of State for Justice  EWHC 2279 (Admin), 15 September 2023, para. 79).
However, the secretary retains a wide discretion to refuse a transfer since it can depart from the Parole Board’s recommendation if there is not a “wholly persuasive case” for transfer to open conditions. In a recent case before the High Court, a prisoner argued that the criterion was so opaque as to be subjective and arbitrary (R (McKoy) v Secretary of State for Justice  EWHC 3047 (Admin), 1 December 2023). The court replied that these words have “an ordinary common-sense meaning” and that, provided the policy is published (as is the case), that fact that it contains a discretion does not make it arbitrary (para. 51-58).
SPECIAL CATEGORIES OF PRISONERS
BELGIUM ■ In September 2023, the Constitutional Court annulled, with retroactive effect, a provision of the law of 30 July 2022 excluding imprisoned foreign nationals without a residence permit from the possibility of early release in the case of prison overcrowding (no. 120/2023, 14 September 2023).
The court held that this provision was contrary to the constitutional right to equality and non-discrimination. As a result of the retroactive effect of the ruling, all past decisions based on the impugned provision are deprived of legal basis.
POLAND ■ In In November 2023, the Commissioner for Human Rights (RPO) asked the prison administration to organise trainings for prison officers on the appropriate treatment of prisoners belonging to ethnic minorities. This move follows reports from the Central Council of Polish Roma that Roma prisoners experienced inappropriate attitudes based on ethnicity, both from prison staff and from other prisoners.
The RPO also asked the prison administration to assess whether prisoners of Roma origin have specific needs or face particular problems, including in solitary confinement, in comparison to the general prison population, and if they would require special action.
TORTURE & ILL-TREATMENT
POLAND ■ In November 2023, the Commissioner for Human Rights (RPO) sent a letter to the General Direction of the Prison Administration, highlighting an irregular practice of prison directors refusing accede to requests made by prisoners to secure video surveillance recordings, on the grounds that such requests can only be made by authorised institutions (police, prosecutor’s office, courts).. The RPO insists that such a practice makes the possibility of securing these recordings illusory, since the intervention of other actors would mean that requests would reach the prison governor after the storage period of the recordings had expired (which is in practice of seven days).
According to the RPO, the right for prisoners to request the securing of recordings derives from Article 6 para. 2 of the Executive Penal Code governing prisoners’ right to file a complaint. Furthermore, pursuant to Article 73a of the Executive Penal Code, prison governors can decide on the storage duration and the use of recordings that are relevant to the security of the facility or to the safety of prisoners.
In a reply to the RPO’s letter, the Deputy General Director of the Prison Administration said that instructions were sent to prison directors receiving requests from prisoners to secure recordings, to review the information provided to them about these recordings and to take appropriate action on their storage and use.
SPAIN ■ In September 2023, the Social Chamber of the Supreme Court delivered a judgement for unification of doctrine (“casación para la unificación de doctrina”) on dismissals in prison (no. 566/2023, 19 September 2023). Through an analogical interpretation of ordinary labour legislation, it ruled that in the event of unlawful termination of a prisoner’s contract, in addition to the right to reinstatement, they are entitled to financial compensation equivalent to the wages they have not received because of the contract’s termination.
The applicant was dismissed in 2019 by the Prison Labour and Employment Training Centre (PLETC) from his job as kitchen assistant in the prison in which he was detained, alleging a negative attitude in relation to the job’s tasks and a strained relationship with his colleagues, preventing the kitchen department from running smoothly.
The Social Court no. 1 of Seville found the dismissal to be unlawful and ordered the PLETC to reinstate him in his prior position and to pay him a compensation of EUR 6,012.93. The PLETC appealed the decision before the High Court of Justice of Seville, which upheld that the contract’s termination was unlawful but dismissed the compensation. The case was referred to the Supreme Court with the view to unify the judicial doctrine on the matter.
The Supreme Court recalled the special nature of prison work, which does not solely consist in providing a paid service but is also an integral part of the “penitentiary treatment” (“tratamiento penitenciario”, a notion that corresponds to the set of activities aiming to achieve prisoners’ social reintegration) and aims to facilitate prisoners’ reintegration into the labour market upon release. Although ordinary labour law does not apply to prison work (except in the cases specifically mentioned in Royal Decree 782/2001), the court held that the consequences of unlawful decisions by the prison administration (such as termination of the employment relationship without just cause), require that adequate compensation be provided to repair the damage caused.