September-November 2024

With 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.
It covers 14 European Union Member States as well as Ukraine, Moldova, the United Kingdom and Russia.

CONTENTS >> DISCIPLINE, HEALTH, INTERNET, JUVENILES, LENGTH OF DETENTION, LGBTQIA+, LONG SENTENCES, MATERIAL DETENTION CONDITIONS, PENAL LAW, PRISONS SUBCULTURE, PRISONS IN WARTIME, PRIVATE AND FAMILY LIFE, PROCEDURAL RIGHTS, REGIME, REMEDIES, SENTENCE ADJUSTMENT, SOCIAL RIGHTS, TORTURE & ILL-TREATMENT, TRANSFER

FRANCE ■ In November 2024, a decree came into force that defines the conditions under which alternative disciplinary proceedings can be applied (Decree no. 2024-1062 of 25 November 2024). The possibility of punishing certain incidents in detention by means of an alternative to disciplinary proceedings was introduced by law a year ago in November 2023. This possibility requires the defendant’s acknowledgement of the facts and their consent. This procedure does not apply to minors.

The decree specifies the incidents covered by this new procedure (for example, refusing to comply with a safety measure, endangering the safety of others through carelessness or negligence, exposing others to obscene or indecent acts, deliberately causing damage to the premises or equipment of the establishment or to the property of others). The decree also indicates that the defendant’s consent to be subjected to this procedure should be in writing and that they have 48 hours to withdraw their consent.

It also specifies what sanction the defendant may receive (for example, a reminder of the rules, the drafting of a letter of apology, a deprivation of cultural, sport or leisure activities for a maximum period of eight days, a meeting, in the presence of a mediator between the offender and the person affected by the misconduct, the carrying out of an awareness-raising action relating to the misconduct committed).

The decree indicates that if the defendant does not comply, they could face disciplinary proceedings. In this case, the prison administration will not be able to rely on the defendant’s previous admission of the facts.

CZECH REPUBLIC ■ A ministerial decree that entered into force on 1 January 2024 mandates the transfer of responsibility for prison healthcare to a newly established special unit within the Ministry of Justice (see also here).
Currently, prison medical facilities in the Czech Republic are operated by the Prison Service (VSČR), and all medical staff are VSČR employees. However, these facilities have long struggled with staff shortages, particularly a lack of doctors, leading to inadequate medical care for prisoners. Complaints about delayed or insufficient healthcare are widespread, with prisoners often waiting several days for a medical consultation. The new management under the Ministry of Justice is expected to improve the situation by enhancing cooperation with civilian medical institutions and increasing accessibility to medical services for prisoners. The full transfer of prison healthcare to the Ministry of Justice is scheduled for completion by 1 April 2025 at the latest.

POLAND ■ In October 2024, the Commissioner for Human Rights sent the Ministry of Justice his proposal for priority areas in the ongoing reform of prison healthcare. He raised a number of issues, including the involvement of nurses and paramedics in security-related tasks (such as supervising visits, conducting personal searches or searching cells), which can undermine the establishment of a relationship of trust with detainees. He also noted the lack of 24-hour medical care, the practice of seeking a prison medical practitioner’s opinion before applying coercive measures (such as placing a prisoner in solitary confinement), the issue of medical consultations in the presence of prison officers and the use of handcuffs in such situations, even when not justified by security concerns.

In addition, the Commissioner considered the insufficient number of doctors and auxiliary staff in relation to the number of inmates to be a significant problem. This shortage is mainly due to non-competitive salaries and difficult working conditions in the prison healthcare service.

The Commissioner also highlighted concerns about the healthcare provided to female prisoners and those suffering from withdrawal symptoms related to fentanyl and alcohol addiction. In his view, there is still a problem with inmates who are dependent, elderly or chronically ill, who can wait up to several months to be admitted to a designated hospital ward. Another problem remains the long waiting times for specialist treatment, which in some cases can be several months.

PORTUGAL ■ In November 2024, the Ministry of Health and the Ministry of Justice implemented an order to create a working group on prison healthcare (Order no. 13345/2024, 11 November 2024) aimed at improving prison healthcare (through a ‘critical analysis of the demographic, economic and social challenges facing the prison health system’), including mental healthcare and ensuring coordination between the various services involved in the planned transfer of prison healthcare to the Ministry of Health (see our issue covering March-May 2024).
The working group is composed of representatives of both ministries, the prison administration and national health agencies. The decree adds that consultations may also be held with representatives of civil society.

SPAIN ■ Reacting to figures made public in November 2024 showing that the number of prison doctors has been cut in half since 2014, the Spanish Society of Penitentiary Health has called on the government to comply with Law 16/2003 on the Cohesion and Quality of the National Health System, which gave the health services of the 17 autonomous regions 18 months to transfer responsibility for prison healthcare. 21 years later, only Catalonia, the Basque Country and Navarre have done so.

The figures were published in a news article  stating that the sharp decrease in the number of prison doctors (from 357 doctors in 2014 to 167 in 2024) was the result of a wave of retirements without replacement. If not properly addressed, this situation is likely to worsen in the coming years. According to the National Confederation of Medical Unions, 69% of prison doctors are over 55 years old, and 54% are over 60. This 53% decrease in the number of prison doctors does not correspond to a similar reduction in the prison population (which decreased by 25% over the same period, from 65,000 to 48,800).

POLAND ■ In September 2024, the Director General of the Prison Service issued a regulation establishing rules and procedures for prisoners’ internet access. According to the regulation, prisoners can visit government administration websites, public information bulletins containing data on the activities of public institutions, and selected websites of organisations responsible for protecting human rights. The latter includes websites of the Council of Europe bodies (ECtHR, CPT, Venice Commission), the UN (central repository of the jurisprudence of the United Nations Treaty Bodies, SPT), and the EU (European Union website, European Union legal acts database). However, the regulation does not include websites of European Union institutions, despite the Commissioner for Human Rights’ request for their inclusion.

ITALY ■ One year after the adoption of a criminal law reform (through the Decreto Caivano, adopted in November 2023), juvenile prisons are experiencing overcrowding for the first time since 1988. As of 15 September 2024, there were 569 imprisoned juveniles (61% of which were minors) for 516 places in juvenile prisons (a density rate of 110%).

According to the NGO Antigone, this is a consequence of the government’s shift from a social to a penal approach to juvenile delinquency. For example, the Decreto Caivano extended the use of preventive measures ordered by the local chief of police (the Questore, bearing responsibility for public order) to juveniles (eg banning them from certain public places, banning them from living in the city, giving them warnings and imposing obligations on them). Violating preventive measures is an offence punishable by imprisonment, which can significantly impact juveniles subjected to preventive measures who are also subject to criminal proceedings (and are therefore less likely to receive a suspended sentence). The decree also increased the penalties for misdemeanours (eg carrying weapons such as knives) and introduced a public order offence (‘public intimidation with weapons’) punishable by up to eight years’ imprisonment. This new offence is specifically aimed at ‘stesa’, ie driving around on a motorbike and opening fire with a gun without a specific target, as a way to mark the presence of members, usually young and under 18, of a local criminal group.

RUSSIA ■ In September 2024, the Constitutional Court ruled that convicted prisoners held in pre-trial detention centres (eg for participation in court hearings, investigation, or those who have been left to serve their short-term sentences in pre-trial detention centres) cannot benefit from the usual conversion rate used to deduct time served in pre-trial detention from the final sentence that pre-trial detainees ultimately receive upon conviction (one day in pre-trial detention equals one and a half day in a correctional colony). It argued in particular that the fact that those convicted prisoners are held in pre-trial detention centres does not change their legal status as convicted prisoners (no. 2056-О, 19 September 2024).

POLAND ■ In September 2024, the Director General of the Prison Service announced the establishment of an interdisciplinary team to analyse transgender people’s situations in Polish prisons and develop solutions that ensure appropriate conditions for serving prison sentences. This decision follows the publication of an ECtHR judgment concerning a transgender prisoner in Poland (W.W. v. Poland, no. 31842/20, 2024; see also our issue covering June-August 2024).

In a letter to the Commissioner for Human Rights asking what measures had been taken to comply with the judgment, the Director General, in addition to providing information on the regulation, stressed that measures were being taken to ensure the safety of transgender prisoners, as well as appropriate psychological, educational and medical care. He stated that the ECtHR judgment had been discussed at a senior management meeting of the Prison Service and that its regional directors had been instructed to review the judgment with their subordinates.

In a separate correspondence, the Prison Service announced the inclusion of topics related to sexual violence and gender-based violence among inmates, particularly women, minors, LGBTQIA+ individuals, and foreigners, in the training programs for officers and staff.

UNITED KINGDOM ■ In September 2024, regulations terminating Imprisonment for Public Protection (IPP) sentences were adopted (Victims and Prisoner Act 2024 (Commencement No. 3) Regulations 2024).

IPP sentences were a form of indeterminate sentence composed of a determined punitive custodial sentence and an indeterminate period that commences after the expiry of the tariff and lasts until the Parole Board judges the prisoner no longer poses a risk to the public and is fit to be released. They were introduced in 2005 and abolished in 2012. After 2012, no new IPP sentences could be given, but everyone already sentenced remained on an IPP sentence until their sentence was terminated.

The termination of IPP is taking place in two phases. The first phase (which concerns around 1,800 people) started in November 2024: convicts who have met the qualifying period of three years since their first release and have been on licence for two or more years continuously (ie a total period of five years, four years for juveniles) had their sentence terminated. The second phase started on 1 February 2025: those serving IPP sentences will have their cases referred to the Parole Board for a termination review three years after their first release (two years for juveniles).

BELGIUM ■ In recent judgments handed down in May and November 2024, the Court of First Instance of Liège has declared that the use of ‘extended prison leaves’ (congés pénitentiaires prolongés) by the prison administration to alleviate overcrowding is unlawful (judgments not available online).

Extended prison leaves were first granted in March 2024, outside of any legal framework, as an emergency measure by the prison administration to alleviate prison overcrowding, a structural problem in the country (they had already been introduced during the COVID pandemic and before that during the prison staff strikes in 2016). Overcrowding has recently been aggravated by reforms leading to the implementation of prison sentences of less than three years, which until then could be adjusted ab initio (see our issue covering September-November 2023).

Initially, extended prison leaves consisted of alternating one-month periods of freedom with one-month periods of incarceration and applied to three categories of convicted persons. With some exceptions, the measure applied to:

• Prisoners serving sentences of no more than ten years, subject to certain conditions;
• Persons serving short sentences;
• Persons under limited detention (allowing prisoners to spend their days outside of prison on a fixed schedule for a maximum of 16 hours, with the end of the day and night spent in prison), regardless of the total sentence served, also subject to certain conditions.

Over time, however, successive circulars have extended the scope of this measure. It is now available to a much wider range of prisoners, including those sentenced to up to 15 years’ imprisonment, with the exception of certain categories of prisoners who are excluded from the measure (eg those convicted of terrorism offences). It may take the form of alternated leaves of more than one month in exceptional cases, or early release up to six months before the end of the sentence. In the latter case, the prisoner must fulfil certain conditions, such as having a legal residence status and reaching the eligibility date for conditional release (see the updated version of the circular dated 15 September 2024).

Extended prison leaves have been criticised since their inception for their lack of legal basis (confirmed by the recent judgments mentioned above), their complexity and the contradiction they create in penal policy. While the Belgian state has adopted reforms aimed at detaining people sentenced to short prison terms, it has decided to release people serving long sentences without any safeguards or support, allowing them one month of freedom for every month of detention. Authorities are disregarding the highly detrimental and widely criticised effects of short prison sentences on individuals, their families and society, as well as demonstrating a lack of complete trust in individuals who have been under their supervision for a long time.

BULGARIA ■ In November 2024, two administrative courts (Sofia, Burgas) acting as courts of cassation found that infestation by bedbugs, without any additional cumulative factors, and the inability of the competent prisons to deal with the problem constitutes inhuman and degrading treatment in breach of Article 3 of the Execution of Punishments and Pre-Trial Detention Act and of Article 3 ECHR. The courts awarded compensation to the applicants (Sofia Administrative Court: case no. 6293/2024, 13 November 2024 and case no. 8109/2024, 22 November 2024; Burgas Administrative Court: case no. 1257/2024, 13 November 2024, not available online).

For years the administrative courts have taken a contradictory approach. Therefore, these decisions set an important precedent and are likely to trigger litigation in other prisons and prompt prison authorities to deal with the issue. The infestation of vermin, particularly bed bugs, is one of the most serious problems in Bulgarian prisons.

FRANCE ■ In September 2024, the Supreme Administrative Court (Conseil d’État), acting as an interim relief judge, rejected a request to suspend new admissions in Tarbes prison where there were serious violations of fundamental rights due to detention conditions and a documented history of ill-treatment by prison staff.

During the proceedings before the first instance judge, the applicants (the French section of the International Prison Watch, and five other organisations) referred to an earlier decision of the Bordeaux-Gradignan prison dated May 2023 to suspend new admissions because of poor detention conditions. They argued that because this decision is administrative by nature, the administrative judge has the power to order such a decision.

Following the negative decision of the first instance judge, they appealed to the Supreme Administrative Court. They argued that a few months before the hearing, the French NPM had issued urgent recommendations concerning this prison, warning of ‘serious violations’ of prisoners’ fundamental rights due to poor prison conditions, and the persistence over several years of violence, ill-treatment (such as beatings, insults, humiliation, threats, etc.) suffered by prisoners at the hands of prison officers, and the existence of a cell dedicated to such ill-treatment. A week before the hearing, a French MP visited the prison and confirmed the unacceptable conditions in which the prisoners were being held.

However, the court argued that the suspension of detention in a particular facility was a public policy decision that did not fall within the jurisdiction of the interim relief judge. With regard to the ill-treatment of prisoners, the court recalled that disciplinary proceedings and criminal investigations had been launched and that 23 prison officers had received training on professional ethics.

HUNGARY ■ In September 2024, the National Prison Administration (NPA) announced the closure of the Heves and Tolna county prisons. This announcement follows the recent closure of the Győr-Moson-Sopron county prison during the summer of 2024 after prisoners attempted to breach the walls of their cells from the inside. Although the attempted jailbreak was thwarted, it highlighted the serious shortcomings of the old, dilapidated prison building, which had been known for some time.

The decision to close the Heves and Tolna county prisons followed an inspection by the NPA, which found that they were so outdated that it would be disproportionately expensive to install the digital and innovative systems that are becoming increasingly common in the prison sector. The NPA emphasised that these two facilities can only accommodate 239 prisoners, which is little more than 1% of the total prison capacity in Hungary. In comparison, the operating costs, including overheads, of these buildings are very high due to their poor energy efficiency.

Recent prison closures contrast with the current context of prison overcrowding. The national average prison occupancy rate was 101% on 31 March 2024, and the opening of the new ‘smart’ prison complex in Csenger, which will hold 1,500 prisoners, originally scheduled for the end of September 2024, has yet to take place (see our issue covering March-May 2024). While there is no doubt that the problem of outdated prison buildings that no longer allow for safe and humane detention needs to be addressed, it is also important to consider that closures can adversely affect prisoners’ right to private and family life when they are transferred to facilities far from their families.

LITHUANIA ■ In November 2024, Lithuania’s Parliament adopted amendments to the Criminal Code. The Ministry of Justice stated that they were the third and final part of an overall revision of Lithuanian criminal law. The amendments came into force on 1 February 2025.

First, the amendments removed community service from the sanctions provided for less serious crimes (intentional crimes punishable by three to six years’ imprisonment) but added other alternative sanctions, such as a fine or restriction of liberty.
Second, the possibility of imposing alternative sanctions (such as a fine, community service, short-term deprivation of liberty, or restriction of liberty) was extended for various offences.
Third, the minimum term of imprisonment for certain offences was increased: eg from five to ten years for offenses prohibited by international law (widespread or systematic attacks directed against civilians, such as murder, deportation, forcible transfer, torture, rape, persecution, etc., as well as genocide). The maximum penalty remains the same (up to 20 years or life imprisonment).
Fourthly, the maximum penalty for other offences has been reduced (recklessly causing grievous bodily harm and recklessly causing deprivation of life, forgery of documents and stamps, making or forging a false electronic instrument, etc.).

POLAND ■ In October 2024, the Ministry of Justice proposed amendments to the Penal Code, the Code of Criminal Procedure, and the Executive Penal Code. The draft has been prepared by the Codification Commission for Criminal Law (an expert body of academics, judges, prosecutors, and practitioners) and aims to remove the most controversial provisions from the legal system, those that violate standards of rational and constitutional law-making. The reform also aims to bring the legal framework fully into line with international standards and the requirements of European Union law.

The draft includes, among other things, the following elements:

• Pre-trial detention based solely on the severity of the potential sentence will be limited to a maximum of 12 months.
• Sentences of more than 15 years or life imprisonment will only be imposed in exceptional circumstances. Life imprisonment without parole will be abolished, ensuring that all life prisoners can apply for conditional release after 30 years.
• The reform also extends the use of non-custodial sentences, making them available for all offences punishable by up to eight years’ imprisonment. The reform also restores the previously applicable principles that guided courts in sentencing. The revised provisions reintroduce the need to consider the rehabilitative goals of punishment and the requirement to tailor the severity of the punishment to the degree of the offender’s guilt.
• Amendments to the Executive Criminal Code will change some formal requirements for conditional release. Convicts who fail to report to serve their sentences will no longer face stricter conditions for release on parole. The role of prosecutors will also be limited, as their presence in such cases will no longer be mandatory.

LITHUANIA ■ In September 2024, the Prison Service Director adopted a plan to minimise the manifestations of criminal subcultures in prisons. The plan was adopted following the CPT’s recommendation to adopt a specific strategy to combat informal prisoner hierarchies, based on the latest research in this field.

Among many other measures, the plan includes infrastructural changes (conversion of the existing dormitory accommodation to a cellular type of accommodation, renewal of the surveillance systems); measures aimed at public officials (staff training on the subject, review of the recommendations to the public prosecutors to start the pre-trial investigation so that inter-prisoner violence would be considered an offence of public importance; etc.); segregation of prisoners to provide a safe environment for those who do not follow informal prison hierarchy rules; increasing the number of staff and the time they spend in contact with prisoners; development of communication channels between prisoners and the administration (including the involvement of prisoners’ councils in the process of minimising manifestations of the informal prisoner hierarchy).

RUSSIA ■ In October 2024, amendments to the Criminal Code extended the mechanism, introduced in March 2024 (see our issue covering March-May 2024), for exemption from criminal responsibility and conditional release of prisoners (except for certain categories of crimes) who have joined the army (Federal Law dated 2 October 2024, No. 340-FZ). The mechanism now applies to defendants whose criminal cases are pending trial. Prior to the October 2024 amendments, only convicted prisoners and persons whose criminal cases were under investigation were allowed to enlist in the army in exchange for postponement or discontinuation of criminal proceedings or early release. The new amendments expand the ‘recruitment pool’ for the Russian authorities by including criminal defendants whose cases have been sent to court with an indictment, including pre-trial detainees awaiting sentencing.

According to the investigative journalism website iStories, the Russian Ministry of Defence, as part of the implementation of the new amendments, plans to recruit and send to the war in Ukraine about 100 accused people from each of the 210 pre-trial detention centres (ie a total of over 20,000 people). According to iStories’s sources, investigators and operatives (ie law enforcement officers authorised to conduct operative-search measures, usually taking place before or in parallel to the formal investigation) have been instructed to persuade accused persons to join the armed forces. In correctional colonies and pre-trial detention centres, according to a lawyer interviewed by the media, the authorities are using poor detention conditions as a means of forcing prisoners to join the army. According to another iStories source close to the General Staff, the decision to send accused individuals to war indicates that the inflow of convicted prisoners is being depleted, and the authorities plan to send 40% of accused persons to war.

HUNGARY ■  In November 2024, Hungary’s Parliament adopted an amendment to the Prison Act eliminating the previous ban on physical contact during prison visits. Coordinated action by several NGOs (including the Hungarian Helsinki Committee and FECSKE – Support Network for Detainees and their Families contributed to this legal change. The new rules will apply from 1 March 2025.

A ban on physical contact was introduced in 2017, and high plexiglass walls were erected between prisoners and their visitors. In 2023, the European Court of Human Rights ruled that separation by plexiglass walls during visits could only be lawful if justified by clear security reasons (see Takó and Visztné Zámbó v. Hungary, no. 2939/17, 12 October 2023 Following this ruling, NGOs launched a wide-ranging campaign to restore the pre-2017 prison visitation policy, including physical contact between prisoners and visitors. The campaign included the publication of applications and complaints forms for prisoners’ relatives to fill in and submit to the prison, as well as the submission of a petition by prisoners’ relatives to the National Prison Administration.

In some prisons, the situation improved within months after the ECtHR ruling (plexiglass walls were removed or replaced with lower ones, and prisoners in lower security categories were allowed to kiss and hug their visitors at the beginning and end of the visit – see our issue covering June-August 2024). But without a change in the law, this remained a favour, not a right backed by legal guarantees.

Under the new law, it will be enshrined in the Prisons Act that prisoners have the right to physical contact with their visitors if certain conditions are met. The most significant of the new provisions is that prisoners and their visitors will now generally be able to greet and say goodbye to each other with physical contact. The separating plexiglass may remain in place for some visits but must not restrict conversation between the prisoner and the visitor. Prisoners who have a minor child or who meet the other conditions laid down by the law (eg have not committed a disciplinary offence during previous visits) will be entitled to a so-called ‘casual visit’ every six months, without plexiglass, and with physical contact allowed throughout the visit.

Although the new rules will apply from 1 March 2025, prisoners in higher security categories will have to wait even longer, from six months to two years, depending on their security category and other circumstances.

The bill that has just been passed will undoubtedly entail changes to lower-level legislation, so there are still questions to be answered (eg exactly what kind of physical contact will be allowed, and how high the plexiglass walls can be in cases where they remain). These questions can only be answered with a clear understanding of both the subordinate legislation, which is expected to be amended soon, and the practice of the prisons.

POLAND ■  In November 2024, the Ministry of Justice announced the launch of a pilot project to allow prisoners to use self-service telephones in their cells. The project concerns prisoners held in closed-type prisons, where they remain in their cells 24 hours a day (except for outdoor walks). According to the Prison Service, prisoners involved in the pilot project will use the phone under the same conditions as before, but they will not need to be escorted out of their cells. As a result, the workload of prison officers will be significantly reduced. It is worth noting that the generalisation of this project could, in practice, increase the number of phone calls prisoners are entitled to in certain prisons, as the Executive Code only sets minimum standards in this regard, while the actual number of phone calls allowed is determined solely by the prison director.

RUSSIA ■  In a ruling issued in May 2024 (published in November 2024), the Supreme Court denied special categories of prisoners the right to be transferred to a prison closer to their families (no. 72-KAD23-5-K8). It based its ruling on a rigid and restrictive interpretation of the 2018 legislative amendments, which, despite providing for the general possibility of transferring prisoners to facilities closer to their families, excluded these special categories of prisoners (lifers, prisoners convicted of certain offences).

In doing so, it overturned an earlier judgment from 2020, in which it had granted a lifer’s request for a transfer, holding that the maintenance of family ties could justify the transfer of a lifer closer to his relatives as an ‘exceptional circumstance’, despite the direct exclusion of lifers from the circle of prisoners eligible for such transfers.

This 2020 judgment referred to the ECtHR judgment in Polyakova and Others v. Russia (no. 35090/09 and three others, 7 March 2017), and had led the Court to conclude that the administrative procedure constitutes a remedy that must be exhausted by prisoners wishing to be transferred closer to their family, before applying to the Court (Dadusenko and Others (dec.), nos. 36027/19 and 3 others, 7 September 2021).

GERMANY ■ In October 2024, the Federal Constitutional Court (FCC), declared that a court should have taken into account the arguments submitted by a prisoner in a case against the prison administration, even if these arguments had reached the court a few minutes after the deadline set (2 BvR 1134/15, 16 October 2024).

The case concerned a prisoner who was to be transferred from a Social Therapy (‘Sozialtherapie’) prison to an ordinary prison and applied against this decision before the sentence enforcement court. The applicant’s representative was given five days (including a weekend) to present their observation, ie until 4 March 2024. These observations were sent by fax and reached the court on 5 March 2024 at 0:18 am. The court gave its decision on the case on 5 March 2024 without considering the applicant’s arguments. The applicant’s observations were not submitted to the deciding judge until 6 March 2024. He claims that on 5 March, before making a decision, he asked the registry whether the applicant had submitted observations, to which the registry replied in the negative.

The FCC ruled that the right to be heard in court proceedings (Article 103, para 1 of the Constitution) requires that the arguments submitted by a party prior to the decision be taken into account by the court. The FCC noted that the deadline of 4 March 2024 was not a legal deadline, but a deadline set by the court itself. It also stated that it was not necessary to determine who was responsible for the failure of the court to register the applicant’s council’s fax at the registry on 5 March 2024 and that the court had to organise its administration properly. Because the applicant’s arguments presented a different view of the facts from that of the prison, the court was obligated to examine them.

HUNGARY ■ In October 2024, a court limited the conditions under which a prisoner’s lawyer may be denied access to prison files. The case concerned a prisoner who requested permission to attend the funeral of his deceased mother. The prison governor refused the request on the grounds that, according to a police report, it would be risky to transport the prisoner to the funeral. The prisoner’s lawyer requested access to the documents supporting the decision, including the police report referred to.

The prison administration initially refused to release the documents by means of an informal letter (which was not a formal decision). Following a subsequent submission by the prisoner’s lawyer, the prison governor issued a formal decision in which he quoted extensively the provisions of the Prisons Act which allowed access to documents to be refused. The Prison Director highlighted in bold the passages which he presumably considered relevant to justify the lawfulness of the refusal. The prisoner’s lawyer challenged this decision before the prison judge.

In his final decision, the prison judge emphasised that one of the fundamental elements of the right to a fair trial is that a detainee and their lawyer should have access to documents prepared or obtained during detention. Only in exceptional and limited cases does the Prison Act allow access to such documents to be denied. The court decision stated that the competent prison authority must assess on a case-by-case basis the extent to which these grounds apply to the documents requested. The prison authority must also consider whether it is possible to redact parts of the documents that are not legally accessible to prisoners. If so, the redacted document must be provided. If, on the other hand, the prison comes to the conclusion that the documents cannot be disclosed at all, a detailed justification must be provided. Quoting the text of the Prison Act alone does not constitute a detailed justification.

POLAND ■ In November 2024, the Provincial Administrative Court in Gliwice annulled on procedural grounds a decision by tax authorities determining the amount due by a taxpayer who was in pre-trial detention at the time of the proceedings. The court found that although the tax authorities were aware of the fact that the applicant was in prison, they had not adapted their procedure to the circumstances, inter alia by allowing the prisoner to examine the evidence submitted.

The court also criticised the legal framework, which does not allow prisoners to appoint a legal representative, a curator or a temporary lawyer to represent them in such proceedings, and therefore constitutes a violation of fundamental constitutional rights and of the ECHR.

In particular, the court argued that ‘there is no justification for a situation in which a temporarily detained person cannot effectively exercise his right to participate in the tax proceedings, which are unrelated to the criminal proceedings’. The court also emphasised that in cases where a taxpayer is temporarily detained, the realisation of their rights requires continuous (and not one-off) information on the status of the case, the provision of information on their rights, the possibility for them to be kept informed of the proceedings, including access to the case file (by providing them with copies of the case file) and ensuring their personal participation in the tax proceedings (under conditions determined by the authority supervising the detention).

UNITED KINGDOM ■ In October 2024, the Court of Appeal gave definitive guidance on the correct approach when considering the legality of the Secretary of State for Justice’s (SSJ) decisions as to whether to accept recommendations from the Parole Board that a prisoner should transfer to open conditions (R (Sneddon) v Secretary of State for Justice, R (Oakley) v Secretary of State for Justice [2024] EWCA Civ 1258 28 October 2024).

The court noted that the statutory framework to transfer prisoners between different categories of prisons (section 12(2) Prison Act 1952) does not require the SSJ to seek advice from the board on this question – the SSJ is therefore not merely the primary, but the sole decision maker. The court further noted that although the Parole Board has relevant expertise, including in relation to the assessment of risk posed by prisoners, so does the SSJ and her department. Furthermore, while the board is a judicial body, when providing advice it is not delivering a decision. Consequently, the court ruled that the decision on transfer is the SSJ’s alone and she is entitled to prefer her own view against the board’s advice if the latter is considered ‘not fully persuasive’. The SSJ does not have to identify an error or deficiency in the board’s findings or reasoning in order lawfully to disagree with its advice.

In conclusion, when assessing the lawfulness of the SSJ’s decision on prison transfer, courts should not seek to identify whether she has relied on a ‘good’ or ‘very good’ reason for departing from a board assessment but simply to establish whether or not the SSJ’s decision was ‘rational’.

This judgment marks a return to a more traditional public law approach and the end of attempts to ensure that the board’s role as a specialist tribunal is accorded heightened respect by reference to a need to give particularly good reasons to depart from its recommendations. However, it does recognise that where the board does have a particular advantage, for example in its assessment of oral evidence, it might be less likely that the SSJ can rationally depart from its findings (since ‘the greater the advantage enjoyed by the board over the [Secretary of State, SoS] on any particular issue, the less likely a decision of the SoS to depart from that finding or assessment will be rational.’, para 36).

BULGARIA ■ In November 2024, several administrative courts set the amount of compensation for inhuman and degrading detention conditions at a low level – between EUR 2.00-2.55 per day for one violation of the prohibition of inhuman and degrading treatment due to bad detention conditions, and up to EUR 5.00 per day for more than one violation (eg Plovdiv Administrative Court, no. 1223/2024, 15 November 2024).

This is likely to discourage the use of compensatory remedy, especially by prisoners who have been detained in such conditions for short periods.

The courts based their decision on the ECtHR decision Domján v. Hungary (no. 5433/17, 14 November 2017), in which it found that compensation of EUR 4.00-5.30 per day of detention in conditions incompatible with Article 3 of the Convention was acceptable in the Hungarian context. The Bulgarian courts argued that since the minimum monthly salary in Bulgaria is 40% of that in Hungary, the amount of compensation for inhuman and degrading conditions of detention should be reduced proportionately.

UKRAINE ■ In November 2024, a new law was adopted, creating a remedy for prisoners held in inadequate detention conditions (Law 4093-IX, adopted on 21 November 2024, in force since 1 January 2025). The remedy can be exercised by prisoners, their relatives or a legal representative. Complaints must be submitted to a special commission which, in addition to examining the documents submitted, may carry out on-site inspections and interviews with prisoners. It can order measures such as the transfer of the prisoner facing poor detention conditions or wider measures to improve detention conditions or reduce overcrowding. The Commission’s decisions can be appealed to the courts.

In addition, the law provides for the introduction of additional compensatory measures for prisoners, such as a reduction in the period after which parole is possible, expungement of a criminal record, replacement of the sentence with a milder one, or exemption from the payment of detention costs. However, these measures will only come into force after the adoption of a separate law amending the Criminal Code and the Code of Criminal Procedure.

PORTUGAL ■ In September 2024, the Lisbon Court of Appeal ruled that although granting previous periods of leave was not a condition for granting early release, it was a strong indicator of the prisoner’s readiness to be reintegrated into the community in the long term (no. 1151/21.3TXLSB-I.L1-9, 26 September 2024).

The case concerned a prisoner who had been sentenced to four years and three months’ imprisonment for conjugal and sexual violence. Having served more than half of his sentence (the minimum period of imprisonment before being eligible for conditional release), he applied for parole. His application was rejected by the first instance court on the grounds that it could not be established that his future behaviour would enable him to live in the community without reoffending.

The Court of Appeal upheld this decision. Although the applicant’s behaviour in prison and the prospects of his release in the short term were favourable (no disciplinary offences, good relations with prison staff and other prisoners, family support, possibility of working outside the prison, completion of a rehabilitation programme aimed at reducing the risk of violence), the Court of Appeal noted that the applicant had been refused release from prison on five occasions. According to the court, although not a condition for conditional release, previous periods of leave are occasions to test the applicant’s ability to walk in a free environment and thus assess the degree of his long-term rehabilitation.

GERMANY ■ The Länder of Bavaria and Hamburg adopted draft laws aiming to change the remuneration system for prisoners employed in prisons. This initiative follows a recent ruling by the Federal Constitutional Court, which found the current remuneration system to be unconstitutional (see our issue covering from June-August 2023). This draft law is based on the recommendations of the working group that was established shortly after the ruling was adopted (see our issue covering December 2023-February 2024). Prior to these Länder, the Land of North Rhine-Westphalia was the first to start amending its law in this respect (see our issue covering June-August 2024).

As part of the reform process, Bavaria has scheduled an expert hearing in parliament in February 2025. Hamburg has not scheduled such a hearing and planned to adopt the reform by the end of 2024. Critics of the proposed legislative changes say that both drafts fall short of the possibilities that could have been achieved by establishing a completely new remuneration system for prisoners. In addition, while Hamburg wants to abolish forced labour for prisoners and replace it with voluntary work, Bavaria is sticking to this concept. Compulsory work means that if a prisoner refuses to accept a particular work assignment decided by the prison, this can result in the prisoner having to pay for accommodation and food, not receiving ‘pocket money’, and being subject to disciplinary proceedings with further sanctions such as the loss of the shopping allowance or the use of a television for a certain period of time.

SPAIN ■  In November 2024, a Royal Decree-Law suppressing the prison release allowance (subsidio de excarcelación), to which prisoners released from prison were entitled, entered into force (Royal Decree-Law 2/2024, 21 May 2024). Until then, prisoners released after serving at least six months’ imprisonment and who were unemployed or ineligible for unemployment benefits received an allowance of EUR 480 for six months (extendable for two further periods of the same duration, up to a maximum of 18 months, provided that they continue to meet all the requirements). In addition to being scarce, the release allowance had many shortcomings. Firstly, prisoners could only apply for it after their release or parole, not while they were serving their sentence in the open regime. Secondly, it was necessary to be unemployed for one month before applying, which made the first two months of a prisoner’s release unsustainable. Furthermore, prisoners who had worked in prison were not entitled to this allowance but had to apply for unemployment benefits (which were usually even lower, given the derisory salaries in prison).

Civil society organisations argue that the new system (thought to ‘ensure the necessary coherence between the different benefits and allowances and that of the minimum living income’) will not resolve these shortcomings but, to the contrary, negatively impact the situations of released prisoners. Under the new system, prisoners will have to request the minimum vital income (Ingreso Mínimo Vital), which, despite being slightly higher (around EUR 600), will involve a longer bureaucratic process (up to nine months according to recent experience).

The reform may also affect the families of prisoners who, after their release, return to live with family members up to the second degree of affinity or consanguinity and who receive the IMV, as the IMV will be suspended for six months. This is because the law requires the family unit to have been constituted for six months in order to be eligible for the IMV. When a new member joins the family unit, the six-month period starts again. If a person is released from prison and lives with people with whom they do not form a cohabitation unit, a report from the social services justifying the situation of social exclusion is required, adding another requirement to the bureaucratic burden.

Instead of the IMV, civil society organisations demand that all those released from prison should have access to a quick and effective financial benefit, without having to fulfil any conditions other than the time spent in prison to facilitate a return to freedom in better conditions.

Also in Spain, in September 2024, the Social Chamber of the Superior Court of the Basque country ruled that a prisoner is entitled to unemployment benefits for work done while detained in the open prison regime (case no. 00182/2024). The case concerned a prisoner who entered prison in 2002 and was placed in an open regime in 2022 (with an expected release date of 2028). He worked while in prison, both under the ordinary prison regime and under the open prison regime. When the employment relationship ended, the State Employment Agency refused to grant him unemployment benefits on the grounds that he had not yet served his prison sentence or been released on parole, situations that would give him access to unemployment status as a convicted person (Articles 35 and 17 of the Prison Law, read in conjunction with Article 12 of the Unemployment Regulations [Royal Decree 629/1285]).

However, the court disagreed with this interpretation, citing Article 25 of the Constitution, which guarantees prisoners the right to paid work and the corresponding social security benefits without restriction. Moreover, the court argued that the open prison regime (which involves leaving the prison for a large part of the day, thus allowing inmates to actively seek employment) should be equated for this purpose with definitive release and parole — both situations in which prisoners or ex-prisoners are entitled to unemployment benefits under Article 17 of the Prison Act. This is even more so because, in this particular case, access to the open regime enabled the applicant to obtain an ordinary job as an employee (ie under an ordinary employment relationship and not under a special prison employment relationship).

The judgment also refers to previous case law of the Superior Regional Court of the Canary Islands and Catalonia, which issued similar decisions in similar situations. However, this decision is not yet final and may be appealed in cassation to the Social Chamber of the Supreme Court.

Lastly, in Spain, in October 2024, Circular 2/2024 came into force, regulating certain aspects of work in Catalan prisons. It supplements Royal Decree 782/2001 and repeals two previous circulars in this field (Circular 1/2001 and Circular 1/2024). According to civil society organisations, the implementation of the new circular will have the effect of excluding prisoners convicted or suspected of crimes that have resulted in death or serious injury from certain positions (eg jobs in the kitchen, bakery, central warehouse and shops, warehouses, maintenance/repairs and gardening).

Indeed, the circular states that the risk score of a prisoner applying for a job should not be ‘high’ (as opposed to ‘low’ and ‘medium’) in the automated risk assessment tool RisCanvi. The inputs considered by RisCanvi include the offence, criminal and violent history, and personal and biographical factors.

In addition, the circular provides for an aptitude analysis to be carried out by the prison’s Internal Security Unit if a prisoner applying for a post is on the Internal Security Supervision Programme or on the RECVI programme (Riesgo Extremo de Conducta Violenta Intrainstitucional, designed to manage inmates at extreme risk of violent behaviour in prison; statistically, these are young men with previous convictions, a history of drug abuse, mental illness or trauma, membership of criminal gangs and long sentences for serious injury and murder).

Civil society organisations, such as the Observatori del Sistema Penal i els Drets Humans, note that this circular was adopted after the Catalan regional government was criticised for the death of a cook at the Mas d’Enric prison at the hands of an inmate and criticise the fact that it violates the principle of ‘individualisation’ that governs the prison law, since it penalises prisoners according to general criteria related to their sentence and not to their behaviour in prison.

GERMANY ■ In November 2024, the Bavarian Ministry of Justice announced the creation of an independent, interdisciplinary commission for fundamental rights issues in the placement of persons in secured prison cells (besonders gesicherte Hafträume, bgH). The commission will be tasked with developing guidelines for the use and equipment of such cells, reinforcing reporting requirements (eg on the placement of prisoners in bgH, on the removal of items from such cells). The commission should also reflect on the possibility of an intervention of a judge after a given period of placement in a bgH. The commission’s work will be based on the expertise of psychiatrists, psychologists, lawyers and prison practitioners.

Formation of the commission followed public allegations made by a former prison doctor at the prison of Gablingen on occurrences of torture and ill-treatment in such cells. Prisoners were allegedly beaten and locked up naked without access to blankets or mattresses. These allegations are even more serious as the doctor informed the Bavarian Ministry of Justice as early as November 2023 and the incidents continued.

In response to the allegations, an interdepartmental task force charged with conducting an internal investigation at the Ministry and the Gablingen prison has also been set up. The director of the Gablingen prison has also been temporarily suspended from duty to facilitate the clarification of the facts. The Ministry also announced the creation of a special unit under its supervision, in charge of monitoring special security measures (including placement in bgH) and complaints about them.

LITHUANIA ■ In September 2024, the Prison Service Director amended the procedure for recording and investigating physical injuries sustained in detention and for storing the relevant documentation.

The amendments strengthen the role of the medical staff by requiring that every injured or self-injured prisoner must be examined by a member of the medical staff, who must photograph the injuries in detail, mark the injuries on a body diagram and complete the prisoner’s examination form. When filling in this form, the medical staff member is required to indicate whether they suspect that the injury is of a violent nature, despite the prisoner’s statements on the origin of the type of injury.

All documents related to prisoners’ injuries (official reports, digital photographs of injuries, body diagrams and prisoners’ medical examination forms) must be kept in a special register in an electronic document management system. Relevant documentation (medical examination form, photographs of injuries and body chart) must be made available to the prisoner concerned and their lawyers upon request.

In cases where violence is suspected, the injured prisoner’s examination form and related documents (official notification of the incident, photographs of the injury, body chart) shall be immediately submitted to the officers conducting the pre-trial investigation.

GERMANY ■ In September 2024, the Federal Constitutional Court (FCC) ruled that courts can order, as an interim measure, that a prisoner who was transferred from one prison to another be re-transferred to their previous place of detention to protect their constitutional rights (2 BvR 150/24, 30 September 2024).

The applicant was informed of the transfer decision approximately one hour before the transfer took place, and he was prohibited from making a phone call. This decision had been made 11 days before. Consequently, he was dismissed from his position at the prison, where his monthly salary was approximately EUR 400, and he was unable to continue his law studies online. The prison to which he was transferred was also farther away from his parents’ place of residence.

The FCC ruled that the sentence enforcement court, which is responsible for reviewing transfer decisions, has the authority to order a re-transfer after the first transfer has already taken place, even as an interim measure (as the issuance of a judgment on the merits could take months). The FCC emphasised that the right to legal protection against state measures (Article 19 para. 4 of the Constitution) encompasses more than just the possibility of going to court, it also covers the ability to challenge such actions effectively. The FCC also acknowledged that infringements of prison leave, work and social relations within prison and to the outside world fall within the scope of constitutional rights.

Funded by the European Union and the Robert Carr Fund. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union, the European Commission or the Robert Carr Fund. Neither the European Union and the European Commission nor the Robert Carr Fund can be held responsible for them.