|
|
29 SEPTEMBER 2022
|
|
|
It can be challenging for practitioners around Europe to follow national case law, legislation and executive branch developments on prison issues. In this newsletter, the European Prison Litigation Network, its members and partners across Europe aim to inform national lawyers and civil society organisations around Europe about the most important legal developments on prison issues. We hope this enables you to better identify European trends and use them in your legal practice. The newsletter covers 14 European Union member states as well as Russia, Moldova, Ukraine and Georgia.
|
|
We welcome your feedback about how to make this newsletter most useful to you.
|
|
|
|
OVERVIEW OF PRISON LEGAL NEWS IN JANUARY-MARCH 2022
|
|
|
COVID-19 ■ In Hungary, even though restrictive measures related to the COVID-19 pandemic were lifted in March 2022, all penitentiary institutions remain under total lockdown to “reduce health risks related to the pandemic” and restrictions imposed on visits remain. In view of the high rate of vaccination among the prison population, the Portuguese Directorate-General for Prison Services lifted part of the restriction in force in prison facilities (measuring temperatures, obligatory PCR tests and separation during visits). In Poland, family visits have been reinstated in penitentiary units due to recommendations by the Director of the Prison Service following the lifting of sanitary restrictions related to the COVID-19 pandemic.
|
DETENTION CONDITIONS ■ The Belgian Central Prison Monitoring Council published an open letter to judges and parliamentarians, encouraging them to visit prisons and witness the living conditions of prisoners held in overcrowded facilities. The French Parliament issued a non-binding report recommending abandoning the principle of single-celling. Also in France, a Supreme Court ordered the Ministry of Justice to execute a November 2020 judgment in which it found the detention conditions in a New Caledonia prison inadequate within a month. The Regional Criminal Court of Vienna, Austria, ruled that the lack of a separate toilet cubicle in a solitary confinement cell did not constitute a violation of a prisoner’s right to respect for human dignity. In Hungary, amendments to the Penitentiary Act created special units for first-time offenders and elderly detainees convicted of crimes committed involuntarily, punishable with a maximum of five years with the aim of helping their reintegration.
|
DISCIPLINE ■ The Supreme Court of Russia declared disproportionate a disciplinary sanction imposed on a prisoner who had to lie on a bed as a result of his state of health.
|
ELECTRONIC MONITORING & HOME DETENTION ■ In Romania, an amendment to a law on electronic monitoring postponed the start of the pilot phase of the new electronic monitoring system. In Austria, by virtue of amendments to the Criminal Code, people convicted of a terrorist offense can now be subjected to electronic monitoring after their early release from prison. In Portugal, an appellate court ruled that after having verified whether the formal requirement for imposing a home detention sentence is met, the competent judge must duly justify why this form of enforcement of the prison sentence should be granted or rejected.
|
LIFE SENTENCES ■ Amendments to the Russian Criminal Code extended the category of crimes punishable by life imprisonment. The Portuguese Supreme Court accepted diplomatic assurances from the People’s Republic of China regarding the maximum length of the sentence an appellant could suffer if extradited and considered no life sentence would be imposed.
|
MECHANICAL RESTRAINT ■ In Spain, a circular reinstates the use of mechanical restraint in Catalonian prisons less than a year after its use was abolished.
|
OVERCROWDING ■ In Greece, prison overcrowding was the focus of a recent research project and was discussed during a session of the Greek Parliament. In Portugal, recently published statistics on the prison population for 2021 show that a third of prison facilities are overcrowded.
|
PENAL & PRISON POLICY ■ The Lithuanian Parliament started examining a draft law that aims to provide more proportionate criminal liability for less serious offenses. In France, two presidential decrees established a penitentiary code to clarify the legal framework that applies in prison. Also in France, an important part of the 2022 prison budget is dedicated to building new prison facilities.
|
PERSONAL BELONGINGS ■ In Bulgaria, orders from the Deputy Minister of Justice established new lists of permitted personal belongings in investigation detention facilities. This does not expand the list of permitted items and maintains previous restrictions regarding television sets. In the Czech Republic, new rules on debt recovery entered into force, negatively impacting prisoners’ savings.
|
PRE-TRIAL DETENTION ■ In Hungary, amendments to the Criminal Code extended the maximum duration of pre-trial detention from four to five years (six in specific cases). In Ukraine, amendments to the Code of Criminal Procedure specified the rules for carrying out investigations into a criminal case and imposing measures of restraint on the suspect during the martial law period.
|
PRISON STAFF ■ The Prosecutor’s Office in the Supreme Civil and Criminal Court in Greece (Areios Pagos) opined on the constitutionality of the law awarding prosecutors who supervise prisons the competence to perform a preliminary investigation of prison staff for alleged disciplinary offenses. The opinion reaffirms an important procedural safeguard for prisoners.
|
PRISONERS OF WAR ■ In Ukraine, amendments enabled special units of penitentiary institutions to temporarily hold prisoners of war until they are sent to prisoner of war camps.
|
PRIVACY ■ The Regensburg Regional Court (Landgericht), Germany, ruled that prison staff may only enter a prison cell while the prisoner is using the toilet if there is a substantial imminent danger or after giving notice and waiting for a reasonable time.
|
PROCEDURAL RIGHTS ■ The Supreme Court of Russia specified the distribution of the burden of proof in compensatory proceedings concerning detention conditions. In Portugal, the Ministry of Justice ordered the Directorate-General for Prison Services to systematically report deaths occurring in prison to the Judiciary Police. The Spanish Constitutional Court declared that the requirement of effective investigations in cases of ill-treatment in police custody shall apply to ill-treatment in prison isolation.
|
REMEDIES ■ In Belgium, independent commission decisions on complaints from prisoners against prison administration decisions are now publicly available online. Also in Belgium, the Council of State specified in two separate rulings the features of “non-financial compensation” that can be awarded to detainees as a result of the reversal of an unlawful, unfair or unreasonable decision taken by the prison director. The Moldovan government recently published figures indicating a wide use of preventive and compensatory remedies introduced following a quasi-pilot judgment regarding the systemic nature of overcrowding and inadequate detention conditions in the country.
|
SEARCHES ■ In Hungary, the Budapest Regional Court of Appeal ruled in two separate cases that the right to dignity of prisoners who had been strip-searched during prison transfers had been breached.
|
SECURITY ■ In Germany, the Regensburg Regional Court (Landgericht) ruled that in the context of prison leave, the prison administration’s security concerns must be weighed against the goal of the prisoner’s reintegration.
|
SENTENCING ADJUSTMENT ■ In the Czech Republic, prisoners wishing to apply for conditional release should apply directly to the prison director instead of the competent court. In Greece, by virtue of amendments to the Criminal Code, sentences imposed for the crime of participating in a criminal organisation are not to be suspended or modified in any way. In Austria, amendments to the Prison Act create “conferences” to decide on prisoners’ early-release. In Italy, the Chamber of Deputies approved a law ending the absolute preclusion of accessing conditional and temporary release for prisoners convicted of specific crimes. In Portugal, an appellate court rejected a prisoner’s request to be granted conditional release, though he met the formal requirements. Also in Portugal, an appellate court specified which criteria are to be taken into account when assessing the evolution of an inmate’s personality. The Constitutional Court of Russia ruled that replacing a custodial sentence with community work cannot be refused solely on the basis of the convict’s age, and declared discriminatory a legal provision excluding a specific category of convicts over 60 from this possibility. In Spain, an instruction from the Ministry of Interior states that the mere existence of non-cancelled serious or very serious disciplinary sanctions in the prisoner’s disciplinary file is no longer an objective reason for denying prison leave. In Ukraine, amendments to the Code of Criminal Procedure introduced a procedure to replace a custodial sentence with military service.
|
TORTURE & ILL-TREATMENT ■ In Hungary, a Regional Court of Appeal ruled on the case of a prisoner suffering from mental health problems who was severely hit by prison staff after having threatened to commit self-harm. Amendments to the Criminal Code of Russia reformulating the domestic definition of torture passed the first reading at the State Duma, the lower house of the Russian Federal Parliament.
|
TRANSFER ■ In Austria, the Higher Regional Court of Vienna ruled that the prison administration acted lawfully in rejecting a prisoner’s request to be transferred to a prison facility closer to his family on the grounds that this facility had high occupancy rates.
|
VISITS & CONTACT WITH THE OUTSIDE WORLD ■ In Bulgaria, amendments to the Execution of Punishment and Pre-Trial Detention Act created the possibility to escort a detainee to attend important events related to their private and family life. In Lithuania, amendments to the Code on the Execution of Sentences increased the number of visits allowed for all three categories of convicted prisoners (held in ordinary, lenient and strict regimes). In Poland, in February 2022, the Director of the Prison Service undertook actions to unify the interpretation of the phone usage time limit for prisoners, regardless of the number of calls made during this time limit. In Germany, the Augsburg Regional Court (Landgericht) specified the conditions under which the prison administration could intercept a letter sent by a prisoner and written in a foreign language and underlined that the mere fact that prisoners are legally required to learn German and integrate in German society is not sufficient to consider that the use of foreign language was unjustified.
|
|
WORK ■ In Lithuania, amendments to the Code on the Execution of Sentences and the Law on the Enforcement of Detention on Remand aim to support prisoners wishing to start self-employed economic activity.
|
|
|
|
|
COVID-19
|
|
|
HUNGARY ■ In Hungary, whereas all COVID-related restrictions were lifted in March 2022, all penitentiary institutions remain under total lockdown and visits are still forbidden. The Director General of the National Prison Administration (NPA) imposed a total ban on prison visits starting in March 2020. A law adopted on 18 June 2020 (Act LVIII of 2020) gives the Director General of the NPA the power to restrict all forms of personal contact including visits and extraordinary temporary releases. As a result, visits and temporary releases have been on hold during the vast majority of the past two years without any limits as the conditions for lifting the ban (such as the rate of infected population, or the rate of vaccination) were never communicated. No reasons were given by the NPA to explain why these restrictions were maintained. NGOs, such as the Hungarian Helsinki Committee, raised concerns numerous times about the total ban on visitation. The Support Network for Detainees and their Families (Swallow) sent more than 600 letters to the Director General of the NPA advocating for the reopening of prisons.
|
PORTUGAL ■ In Portugal, in view of the high rate of vaccination among prisoners, the Directorate-General for Prison Services adopted two documents (a Directive and an Information) in February 2022 lifting some of the COVID-19 related restrictions in force in prison establishments. This includes the compulsory measurement of temperature, compulsory PCR tests for inmates that enter the prison, and the removal of acrylic separators during visits.
|
|
POLAND ■ In Poland, following the adoption on 26 March 2022 of recommendations by the Director of the Prison Service, family visits have been reinstated in penitentiary units and other COVID-related restrictions limiting direct contact with prisoners have been relaxed. Following the COVID-19 outbreak in March 2020, prisoners’ rights were severely restricted, including the right to receive visitors. The Executive Penal Code allows directors of penitentiary units to limit or completely suspend visits in cases justified by serious health or sanitary reasons or a serious threat to security. As a result, in the last two years, family visits were possible only during a few months, and far-reaching limitations were introduced (e.g. no children allowed). In some units, it was even not possible to use electronic communication (i.e. Skype). The importance of restoring family visits has been repeatedly expressed by the Ombudsman, NGOs such as the Helsinki Foundation for Human Rights and the community of detainees’ family members, opposing this drastic restriction of the right to family life. The Ombudsman also pointed to the beneficial effect on detainees of maintaining frequent and direct family relationships. The resumption of family visits has been very well received by the human rights community and society in general.
|
|
|
|
DETENTION CONDITIONS
|
|
|
BELGIUM ■ In March 2022, the Belgian Central Prisons Supervisory Council published on its website an open letter to judges and parliamentarians encouraging them to visit overcrowded prison facilities, where detention conditions are an “attack on [prisoners’] fundamental rights”. Both the ECtHR (see for instance Vasilescu v. Belgium, no.64682/12, 25 November 2014) and the CPT (see the latest report on Belgium published in 2018, § 39) have repeatedly denounced prison overcrowding in Belgium over the last decade.
Though a new set of remedies was created in 2020 (see below, “remedies”), the structural nature of the problem remains. In response to this letter, the Ministry of Justice announced the creation of additional places – a measure deemed inappropriate by NGOs and academics, who advocate instead for the drastic limitation of the use of imprisonment. In February 2022, one month prior to the publication of the letter, the number of prisoners crossed the symbolic figure of 11,000 (the total capacity of the prison system is 9,500). The latest CoE SPACE statistics published by the CoE show that only five other CoE Member States have a comparable or higher prison density per 100 places (Turkey, Greece, Romania, San Marino and Cyprus).
|
FRANCE ■ On 12 January 2022, a French parliamentary commission published a report on “the dysfunctions and shortcomings of French prison policy”. MPs recommend abandoning the principle of single-celling on the grounds that the cost incurred is too high, and many prisoners do not want to be kept alone in a cell. NGOs came out against this proposal, arguing that though not always complied with, the principle of single-celling helps limiting serious ill-treatment associated with overcrowding. Furthermore, the fact that some prisoners do not wish to be detained alone should not deprive the whole prison population from this right.
In a 11 February 2022 judgment, the French Administrative Supreme Court (Conseil d’Etat) ordered the Ministry of Justice to implement its November 2020 judgment in which it found that detention conditions in Nouméa prison (New Caledonia) were inadequate within a month, and imposed a fine of 1000 euros per day of delay. Both complaints (of the detention conditions, and not executing the judgment) were brought before the Supreme Court by the French section of International Prison Watch (OIP-SF).
|
AUSTRIA ■ The Regional Criminal Court of Vienna, Austria, ruled that the lack of a separate toilet cubicle in a solitary confinement cell did not constitute a violation of the right to respect for human dignity (Landesgericht für Strafsachen Wien, 3.11.2021, 193 Bl 48/21t, published in JSt 2022/1, 74). The Prison Act distinguishes between ordinary cells for more than one inmate (where toilet cubicles should be architecturally separated – “baulich abgetrennt”) and solitary confinement cells (where the toilet should only be visually separated from the cell – “abgetrennt”).
|
|
HUNGARY ■ In Hungary, amendments to Sections 109/B and 109/C of the Penitentiary Act entered into force on 1 March 2022. They created special units for first-time offenders and elderly detainees (over 60 years old) convicted of an involuntary crime, punishable with a maximum of five years. The objective of these units is to help detainees adapt to detention and help them reintegrate. Detainees placed in the special unit for first-time offenders may receive support for repairing family relations, and opportunities to contact family members. Detainees placed at the elderly unit receive special physical and mental health care.
|
|
|
|
DISCIPLINE
|
|
|
|
RUSSIA ■ On 26 January 2022, the Supreme Court of Russia deemed a disciplinary sanction disproportionate (Administrative Chamber, Cassation decision, No. 53-КАД21-20-К8). The applicant was transferred to a disciplinary unit of his facility because he was lying on his bed during the day – which was considered a breach of his detention regime. He was also declared a “persistent offender” and placed under preventive supervision, a measure that significantly reduced his chances to mitigate his sentence or of an early release. The Supreme Court found the decision of the prison authorities unlawful and disproportionate, noting that the applicant felt unwell and nauseous as a side effect of his anti-retroviral therapy. The Court also noted that putting the applicant under preventive supervision created a continuous negative legal effect on him: as a result, the decision of the prison administration could be appealed even after the usual three-month time-limit for challenging such decisions.
|
|
|
|
ELECTRONIC MONITORING & HOME DETENTION
|
|
|
ROMANIA ■ In Romania, the Emergency Ordinance no.14/2022 of 24 February 2022 amended Law no.146/2021 on electronic monitoring in judicial and criminal enforcement proceedings. The pilot phase of the new national electronic monitoring system has been postponed from 1 March to 1 October 2022. The ending date of this pilot phase remains unchanged (31 December 2025). During the pilot phase, the electronic monitoring system will be used to monitor convicts serving a sentence under a semi-open regime and carrying out work or specific activities outside prison (for example, of an educational, therapeutic or cultural nature, as well as psychological counselling and social assistance). From 2026 onwards, electronic monitoring (through ankle bracelets) will be rolled out further and apply to all categories of detainees.
|
|
PORTUGAL ■ In Portugal, the Évora Court of Appeal ruled on 8 February 2022 that courts deciding on whether home detention should be granted or rejected shall motivate their decisions. The competent courts should also verify that a few requirements are met (i.e. the technical feasibility of remote monitoring and obtaining the offender’s consent), and assess the proportionality and adequacy of the measure (case no. 616/16.3PBSTR-A.E1).
|
|
|
|
LIFE SENTENCES
|
|
|
RUSSIA ■ Amendments to the Russian Criminal Code (Article 57 § 1) adopted on 28 January 2022 extend the category of crimes punishable by life imprisonment by adding sexual offences against minors of all ages (i.e. under age 18). Before the amendments, sexual offences could entail life sentence only if committed against minors below the age of 14.
|
|
|
|
MECHANICAL RESTRAINT
|
|
|
|
SPAIN ■ In Spain, Circular 1/2022 of the Department of Justice of the Catalan Government reinstated the recourse to mechanical restraint less than one year after Circular 2/2021 was adopted, which abolished this practice and replaced it with padded cells, in line with the recommendations of the CPT. The main reason given for repealing the previous protocol was that the significant decrease in the number of mechanical fixations coincided with a relative increase in the number of incidents of self-harm among inmates and aggression against prison officers. While the prison officer unions welcomed the new protocol, NGOs that defend prisoners´ rights consider it a step backwards. The Catalan Ombudsman called on the authorities to include a maximum duration for mechanical fixation, an obligation to immediately notify the Supervisory Judge (instead of the 24-hour window currently foreseen), and a gender perspective in the new protocol.
|
|
|
|
OVERCROWDING
|
|
|
GREECE ■ Overcrowding in Greek prisons caused the rapid spread of COVID-19 in prison, according to a new report published by a media organisation. Greece has one of the highest overcrowding rates in Europe (see the most recent CoE SPACE statistics). The report is the conclusion of two-year research during which the journalists and organisations involved collected data on Greek prisons (capacity, state of overcrowding, COVID-19 cases and related deaths, and access to health care and vaccination) and conducted interviews with prisoners, experts, scientists and institutional actors. With 870 COVID-19 cases recorded by 2 July 2021 among inmates (7.9% of the prison population), Greece was the seventh most affected country out of the 25 countries reviewed. More recent official data provided by the General Secretariat of Anti-Crime Policy indicate that up to February 2022, 3,541 cases and 14 deaths due to COVID-19 have been recorded in prison.
Overcrowding in Greek prisons and detention conditions were also discussed in the Greek Parliament, following a recent resolution on this issue adopted during the 1428th CoE Committee of Ministers’ Human Rights meeting. There is particular concern that, despite repeated complaints and the particularly high number of complaints against Greece pending before the ECtHR, no effective action has been taken by the government in this respect.
|
|
|
|
PENAL & PRISON POLICY
|
|
|
LITHUANIA ■ On 29 March 2022, the Lithuanian Parliament examined a draft law amending the Criminal Code and related legislation. The aim of the draft law is to establish criminal liability as an ultima ratio measure to reinforce the proportionality and effectiveness of the state penal policy. Among the measures proposed are a partial or total decriminalisation of some offences and setting higher thresholds for criminal liability by increasing the amount of ‘minimum standards of living’ (MSLs) that determine the gravity of committed offence. For example, it is suggested to amend Article 190 (Explanation of Concepts) of the Chapter XXVIII ‘Crimes and Misdemeanours against Property, Property Rights and Property Interest’ that defines when the property is considered of low and high value. Currently, a property is considered to be of low value if it is worth between 3 and 5 MSLs (1 MSL = 50 EUR), and it is suggested to increase this to up to 10 MSLs, which would mean that, e.g. a theft becomes a crime, and not a misdemeanour, if the stolen property is valued more than 500 EUR (an increase from 250 EUR).
|
FRANCE ■ In France, a Penitentiary Code entered into force on 1 May 2022 by virtue of two decrees taken by the French President, following a broader reform adopted on 22 December 2021. The aim of the code is to clarify the applicable law in prison and make it more accessible to prisoners and legal practitioners. The recommendation to create a Penitentiary Code was already made in 2015, with a view to make prison law more coherent, accessible and readable for prisoners, judges, lawyers and prison staff.
Also in France, an important part of the prison budget for 2022 is dedicated to building new prison facilities. The amount allocated (1 billion euros) is more than 20 times higher than the sum devoted to alternatives to incarceration (40 million euros), and more than 10 times higher than the sum devoted to renovating existing prisons (80 million euros), and the lack of renovation is often the cause of poor detention conditions. NGOs criticised this measure, arguing that it will not help reduce prison overcrowding.
|
|
|
|
PERSONAL BELONGINGS
|
|
|
BULGARIA ■ In Bulgaria, new lists of permitted personal belongings in investigation detention facilities created by order of the Deputy Minister of Justice entered into force on 1 January 2022 (see here and here). These do not expand the list of permitted items, and maintain previous restrictions, such as limiting the possibility of prisoners held in investigation detention facilities to buy 12-volt TV sets. As this model is very difficult to find, and watching TV is the only possible activity in these facilities, the orders negatively impact prisoners’ everyday life. Furthermore, these sets are to be bought from the prison administration’s shopping service at a higher price than outside prison. Many prisoners also complained that the prison administration cannot satisfy demand: as a result of budgetary constraints, the prison administration can only purchase and sell 15-20 TV sets per prison per year, which is insufficient to cover the needs of new prisoners.
|
|
CZECH REPUBLIC ■ In the Czech Republic, new rules on debt recovery adopted by the prison administration on 1 January 2022 will have a negative impact on prisoners’ savings in bank accounts managed by the administration. Until 31 December 2021, half of the money received by a prisoner during a given calendar month was withheld by the prison administration to reimburse debts incurred in connection with the prisoner’s criminal activity or incarceration. The other half was left at the prisoner’s disposal. Since 1 January 2022, the prison service can now withhold the other half of the money to repay debts unrelated to a prisoner’s conviction. As a result, the amount of money available to the prisoner is significantly reduced. This change was widely criticised by NGOs. The prison administration argues that these rules comply with a judgment of the Prague Municipal Court but does name a specific file number identifying this judgment.
|
|
|
|
PRE-TRIAL DETENTION
|
|
|
HUNGARY ■ In Hungary, amendments to the Criminal Code entered into force on 1 March 2022 extended the maximum duration of pre-trial detention from four to five years. The five-year period can be extended to six years, e.g., if an offence is committed by a criminal organisation, if a non-EU country requests cooperation in criminal matters, or if the suspect absconded or attempted to abscond or tried to interfere with the investigation (such as through destructing, falsifying or concealing evidence). This is the conclusion of an almost 10-year long process.
In December 2013, the Hungarian Parliament adopted an amendment to the Code of Criminal Procedure, whereby the four-year time limit on pre-trial detention pending a first instance judgment was abolished for those accused of crimes punishable by a prison term of up to 15 years or life-long imprisonment. The Hungarian Helsinki Committee argued from the outset that eliminating the time limit with regard to pre-trial detention contradicts the Fundamental Law of Hungary, and raises serious concerns in light of international standards and relevant caselaw of the ECtHR. This was confirmed by a ruling of the Constitutional Court in March 2021 that the provision of the Code of Criminal Procedure that allows for unlimited pre-trial detention pending a first instance judgment is unconstitutional.
The law establishing the new maximum duration for pre-trial detention argues that in offences punishable by life imprisonment, “there is a justified social demand that the law should provide for the possibility of detention exceeding the maximum limit of 4 years of imprisonment, in accordance with the material gravity and the characteristically complex assessment of the offense”.
|
|
UKRAINE ■ In Ukraine, amendments to Article 615 of the Code of Criminal Procedure regarding the procedure for pre-trial investigation during the martial law period entered into force on 3 March 2022. For certain categories of criminal cases, and in case the court is unable to perform its duties during the pre-trial investigation due to military actions, their powers are entrusted to the head of the competent prosecutor’s office, who can choose a measure of restraint for the suspect for up to 30 days and repeatedly extend it during the pre-trial investigation period. The article also provides that in case a court decision on the application of a pre-trial detention measure expires, the measure is to be extended until the court decides on this issue (within a maximum period of two months). Decisions by the prosecutor may be appealed in court.
|
|
|
|
PRISON STAFF
|
|
|
|
GREECE ■ The Prosecutor’s Office at the Supreme Civil and Criminal Court in Greece (Areios Pagos) opined on the constitutionality of the law that awards prosecutors who supervise prisons the competence to preliminarily investigate prison staff for alleged disciplinary offenses (Opinion 2-2022). In doing so, it responds to the view of the supervising prosecutor of the Patras prison that the competence awarded to supervising prosecutors to perform preliminary disciplinary investigations in cases of allegations against prison staff (often pertaining to the treatment of prisoners) is contrary to the constitutional provision precluding members of the judiciary from executing administrative tasks. The contested view assumes that disciplinary proceedings are inherently an administrative issue, as they pertain to the exercise of the prison guards’ duties as public employees, subject to hierarchical control by the administration. The Prosecutor’s Office found that involving the supervising prosecutor in disciplinary proceedings against prison staff is permitted under the constitutional exception that allows members of the judiciary in councils or committees to perform disciplinary duties. It interpreted the provision broadly, as allowing members of the judiciary, including prosecutors, to perform these duties individually, and highlighted the close relationship between disciplinary investigations and criminal ones, on the basis of the Engel criteria established by the ECtHR. The Prosecutor’s Office observed that prosecutors are charged with overseeing sentences handed down by criminal courts and the conditions under which they are carried out. Moreover, the law explicitly allows the supervising prosecutor, while visiting prison, to hear any prisoner who wishes to file a complaint with them (which most often pertain to detention conditions and the behaviour of prison staff). Depriving the supervising prosecutor of this disciplinary competence would, thus, render their supervising duties ineffective and largely devoid of meaning. Based on the above, it opined that the relevant legal provision is in line with the Greek Constitution’s letter and spirit.
|
|
|
|
PRISONERS OF WAR
|
|
|
|
|
|
|
PRIVACY
|
|
|
|
GERMANY ■ The Regensburg Regional Court (Landgericht), Germany, ruled that prison staff may only enter a prison cell while a prisoner is using the toilet if there is a substantial imminent danger or after giving notice and waiting for a reasonable time (LG Regensburg, SR StVK 245/21). In this case, a prison staff member entered a cell when a prisoner was on the toilet next to the door. Though the applicant had informed the prison officer in charge and tried to hold the door shut, the prison officer pushed the door open and entered the room without waiting. The court ruled that in doing so, the prison officer breached the prisoner’s right to privacy enshrined in the constitution. The court declared that even though the prison staff’s authority applies to the whole prison, the allocation of a room to a prisoner is meant to provide them with a personal living space that is separate from the general prison (BVerfG NJW 1996, p. 2643). This separate room is the only possibility for prisoners to enjoy their privacy (BGHSt 37, 380 (382) = NJW 1991, 2652).
|
|
|
|
PROCEDURAL RIGHTS
|
|
|
RUSSIA ■ On 16 March 2022 the Supreme Court of Russia (Administrative Chamber, Cassation decision No. 5-КАД21-56-К2) clarified rules on the burden of proof in compensation proceedings concerning detention conditions. The court declared that monetary compensation shall be granted to a detainee having endured inadequate detention conditions as they inevitably cause moral (non-pecuniary) damage. Furthermore, the compensation shall not depend on an applicant’s capability to prove the existence of moral damage. The burden of proof imposed on the applicant in compensation proceedings shall not be excessive: they may be requested to provide easily accessible evidence, such as a detailed description of their detention conditions, witness testimony and replies from supervising authorities. The prison administration, as the “strong” party in the proceedings, shall rebut allegations of inadequate conditions with documentary evidence.
|
|
SPAIN ■ The Spanish Constitutional Court explicitly declared in its judgment 12/2022 of 7 February 2022 that the requirement of extensive and thorough investigations in cases of allegations of torture and ill-treatment during incommunicado detention in police custody apply as well to similar acts in prison. The court based its reasoning on the similar degree of vulnerability of the alleged victims. This requirement stems from prior constitutional court and ECtHR case-law. In this case, the applicant was serving his sentence in a closed regime and immediately after the alleged acts of ill-treatment took place, was mechanically restrained to a bed for several hours
|
|
|
|
REMEDIES
|
|
|
BELGIUM ■ In Belgium, decisions rendered by the recently created independent commissions tasked with reviewing prisoners’ complaints against the prison administration are now freely available online. This long-awaited measure has been praised by the judiciary, academics, and NGOs such as the Belgian Section of International Prison Watch and the Belgian League of Human Rights. The independent commissions (created within independent supervisory bodies – the local supervisory commissions and the Belgian Central Prison Monitoring Council) play a central role in the remedies established in Belgium in 2020 whereby prisoners can complain about prison administration decisions (e.g. searches, disciplinary sanctions and transfers). The Supreme Administrative Court (Council of State) is the cassation court of the rulings handed down by these commissions.
Also in Belgium, the Supreme Administrative Court (Council of State) delivered two rulings dated 31 January 2022 (n°252.827 and 252.828) in which it specified the features of “non-financial compensation” that can be awarded to prisoners as a result of the reversal of an unlawful, unfair or unreasonable decision taken by the prison director (see above). Firstly, the adjective “non-financial” should be interpreted in the narrowest sense: compensation should not consist of awarding a sum of money, but can take the form of items that can be exchanged for money (in this case, tobacco at a lower cost). Second, the compensation must directly benefit the applicant. In this case, the detainee was subjected to a body search that was considered unlawful by the first instance and appeal commissions. The commissions ordered the prison administration to disseminate rules on body searches among prisoners. While acknowledging the educational aspect of the sanction, the Council of State declared that compensation must be granted personally to the detainee concerned – and cannot take the form of collective compensation benefitting all detainees of a penitentiary establishment.
|
|
MOLDOVA ■ The Moldovan government recently published figures on the use of the remedy put in place in 2019 following the ECtHR quasi-pilot judgment Shishanov v. Republic of Moldova (no. 11353/06, 15 September 2015) that found prison overcrowding in Moldovan prisons was of a systemic nature. The ECtHR requested Moldova to introduce preventive and compensatory remedies whereby prisoners could complain about their detention conditions and improve their situation. From 1 January 2019 through 30 March 2022, 21,591 applications were submitted regarding poor detention conditions, a very high number for a country with roughly 7000 prisoners. Out of the 21,591 applications filed, 15,818 were examined, 8262 admitted or partially admitted, and 2904 rejected.
|
|
|
|
SEARCHES
|
|
|
HUNGARY ■ In Hungary, the Budapest-Capital Regional Court of Appeal ruled on 6 January 2022 on the case of a prisoner who was strip-searched on four occasions while being transferred (case no. 9.Pf.20.484/2021/6). The searches took place in the prison’s dining room, in front of many people (prison staff and prisoners). The Court concluded that the prison administration violated the prisoner’s human dignity pursuant to § 2:42 (2) of the Civil Code. Though acknowledging that security concerns might lead to a restriction of prisoners’ right to privacy, the court ruled that these reasons cannot justify attempts to limit a prisoners’ dignity. In the case at hand, the privacy of the prisoner could have been upheld by installing a screen – a measure that requires little effort and does not interfere with the order or security of the prison.
On 25 January 2022, the same court ruled on the case of a prisoner who was strip-searched 21 times between October 2016 and February 2018 while being transferred (case no. 9.Pf.20.606/2021/4). The searches (during which the applicant was naked, and which involved cavity searches) took place in the prison’s dining room in front of many people. Both the court of first instance and the appellate court ruled that the indecent search was carried out unnecessarily in front of several people, humiliated the prisoner, filled him with a sense of shame, and caused him non-material damage. The Appellate Court therefore concluded that there had been a violation of Article 151 (2) of Act CCXL of 2013 on the Enforcement of Penal Sanctions, Measures, Certain Coercive Measures, the Execution of Imprisonment for Offences (Penitentiary Code) and of OP 26/2015 (31.III.) on the Issuance of Security Regulations of the Prison Service. The court noted that a rigorous necessity-proportionality test should be applied to consider the security of the prison as well as the rights of the detainees. In this case, the restriction on the applicant’s rights amounted to a violation as the penitentiary institution’s blanket security reasoning was insufficient, as the violation could have been prevented by a simple, low-cost measure (the installation of a screen), which does not in any way disturb or hinder the order or security of the prison.
|
|
|
|
SECURITY
|
|
|
|
GERMANY ■ In Germany, the Regensburg Regional Court (Landgericht) ruled that in the context of prison leave (specifically, a category of prison leave for long-term prisoners – “Erhaltung der Lebenstüchtigkeit”), the prison administration’s security concerns must be weighed against the objective of the prisoner’s reintegration (LG Regensburg SR StVK 193/20). When leaving the prison facility, the prisoner was accompanied by uniformed officers and wore handcuffs attached to a waist belt. In addition, before leaving the prison, the prisoner had to take off his underwear in front of officers, and his underwear was then briefly searched. The prison administration justified this out of security concerns (the risk of escape and misuse of leave to commit crimes). The court ruled the prison administration breached the prisoner’s fundamental right to reintegration enshrined in Article 2 of the Constitution read in conjunction with Article 11. In addition, the court recalled that shackling prisoners may only be ordered if less drastic or discriminatory measures are insufficient. In this case, the factual requirements of Article 96 I, II No. 6, and IV of the Bavarian Prison Act for shackling (danger of escape, violence against persons or objects, and suicide or self-harm) were not met. Similarly, the physical search and removal of clothing were conducted in breach of the requirements of Article 91 II of the Bavarian Prison Act.
|
|
|
|
SENTENCING ADJUSTMENT
|
|
|
CZECH REPUBLIC ■ In the Czech Republic, amendments to Section 331(1) of the Code of Criminal Procedure entered into force on 1 January 2022 modify the procedure for applying for conditional release. Before that, conditional release requests were to be addressed (via postal mail or email) to the competent district court, which then asked the prison administration to prepare a report on the prisoner’s behaviour and the formal requirements for conditional release (including the duration of the sentence already served). Prisoners are now requested to apply directly with the director of the prison facility where they are held. The director then ten days to forward the request to the competent court together with the associated report. The court should take a decision within 30 days of receiving the application. This new procedure is seen as endangering prisoners’ rights. First, the prison administration would have access to the whole application file containing personal and sensitive information, which could be circulated among prison staff and convicts without the applicant’s consent. Second, it is feared that additional documents attached to the application might be lost by the prison administration in the process. Third, this new procedure creates uncertainty as to the duration of the application review process: since the prison administration is now responsible for sending applications to the court, prisoners will not be informed of the exact date the court receives their application.
|
GREECE ■ In Greece, law 4908/2022 (O.G. Issue 52/Α/11-3-2022) amends article 187 of the Greek Criminal Code on participation in a criminal organisation. The new provision states that “sentences imposed for the criminal acts of the present article, as well as any related offences which were examined jointly in the court’s decision, may not be suspended or modified in any way; appeals filed do not have a suspensive effect”. Article 187 concerns both felonies and misdemeanours, while the new provision also applies to ‘related offences’, regardless of classification. The law was enacted in the aftermath of the January 2022 murder of a 19-year-old in Thessaloniki by supporters of an opposing football team. Its stated purpose is to address violence in sports. Nevertheless, the impugned provision of the Criminal Code is much broader. The Athens Bar Association criticised the amendment, stating that: first, it violates the presumption of innocence as it horizontally and without exception precludes the suspensive effect of appeals, second, it undermines the balance of the Greek criminal justice system, as it prohibits the suspension of sentencing and the modification (e.g., to communal service) of misdemeanours, while potentially allowing it for much more serious crimes, and third, it shows distrust for the judge who is primarily responsible for determining whether a sentence should be suspended or modified.
|
AUSTRIA ■ In Austria, amendments to the Prison Act entered into force on 1 January 2022 modify the decision-making process on prisoners’ early release with the creation of ‘conferences’ that aim to provide competent courts with additional information on the application. Pursuant to para. 144a of the Prison Act (PA), the head of the prison facility may task the Probation Service with the organisation of a “social network conference” (Sozialnetzkonferenz) involving the prisoner’s social environment (family, friends, neighbours etc). Including a prisoner’s social environment in planning an early release is designed to reduce the risk of reoffending. Such conferences may not be held without the prisoner’s approval. Public prosecutors and the court must be allowed to participate in these conferences. Furthermore, para. 152/2a PA introduces an obligation to conduct a professional conference (Fallkonferenz) on the early release of prisoners convicted of a terrorist or subversive crime. Such professional conferences involve the Federal Agency for State Protection and the Centre for Prevention of Extremism and Deradicalization in prisons. Both types of conferences must assess whether the requirements for early release are met, as well as which protective measures (to prevent the prisoner from reoffending) should be imposed upon their release. The opinions of the conferences are not binding. These amendments were issued as part of the Counter Terrorism Act. The background was the terrorist attack in Vienna on 2 November 2020, and a perceived need to improve preventive measures. This reform was approved by the Austrian Probation Service, the Austrian Association of Judges and the Austrian Bar Association.
|
ITALY ■ In Italy, on 31 March 2022 the Chamber of Deputies approved a law reforming access to conditional release for prisoners convicted of the crimes listed in art. 4 of law 354/1975, as well as their access to “benefici penitenziari” (literally, “penitentiary benefits”) – a group of measures that, under specific circumstances, award prisoners with good behavioural reports temporary release licences, alternatives to imprisonment such as home detention and probation, and reductions on the final duration of the sentence. Until the adoption of the new law, prisoners’ access to these benefits and conditional release depended on their consent to cooperate with the Italian judicial authorities. This conditionality was declared contrary to Article 3 of the ECHR by both the Italian Constitutional Court in 2021 and the ECtHR in 2019 (Marcello Viola v. Italy (no.2), no.77633/2016, 13 June 2019). The ECtHR case concerned a lifer whose sentence was considered non-reducible. The court identified a structural problem resulting from the domestic legal framework and prescribed, under art. 46 ECHR, an intervention of authorities, preferably through legislation. The current reform is an attempt to solve this structural problem, as stated by the Italian government in its Communication to the Committee of Ministers dated 15 December 2021. The new law establishes new conditions under which prisoners convicted of the specific crimes listed can access the “penitentiary benefits” mentioned. Such prisoners are requested to submit specific and concrete evidence that they do not have any connection with organised crime, and that there is no danger that such connections can be restored (directly or through a third party). This applies to other crimes as well, such as crimes against the public administration (e.g. corruption and abuse of public office). Lifers convicted of these specific crimes who do not cooperate with the judicial authorities can now apply for their sentence to be adjusted after serving 30-years of detention.
|
PORTUGAL ■ In Portugal, the Évora Court of Appeal rejected on 25 January 2022 a prisoner’s request to be granted conditional release (case no. 133/21.0TXEVR-D.E1). Although the prisoner met the formal requirements, he did not admit to committing the offence for which he was convicted and attributed responsibility for his imprisonment to the victim (his father) to whom he showed no empathy. As a result, despite the appellant’s good behaviour in prison and his expressed will to reintegrate, the court found there was sufficient justification that conditional release should not be granted (i.a. the nature of the offense, the appellant’s personality and their living conditions).
Also in Portugal, in a separate case handed down on 8 March 2022, the Évora Court of Appeal specified which criteria should be taken into account when assessing the evolution of an inmate’s personality in view of their early release (case no. 1333/12.9TXLSB-W.E1). The evolution of the inmate’s personality must be perceivable beyond the inmate’s psychiatric state. Persistent behavioural patterns that indicate adequate preparation for life in a free environment should also be taken into account. These patterns may reveal themselves either by omission (the absence of disciplinary punishments) or actively (commitment to improving skills, such as work, study or training).
|
RUSSIA ■ The Russian Constitutional Court ruled that the replacement of a custodial sentence with community service cannot be refused solely on the basis of a convict’s age (judgment no. 8-P of 24/02/2022). The court found the provisions of Article 53.1 § 7 of the Russian Criminal Code to be discriminatory as they provide that a non-custodial sentence of community service cannot be imposed on male convicts who have reached the age of 60 years old (the retirement age for men in Russia). The court observed that male convicts over 60 who are sentenced to imprisonment for ‘particularly serious crimes’ and detained in strict regime colonies are completely deprived of opportunities to mitigate their sentence. The Constitutional Court ordered the legislature to amend the relevant provisions. This position of the Russian Constitutional Court directly clashes with (and presumably supersedes) the previous guidelines issued last year by the Supreme Court (see issue no.1 of this newsletter).
|
SPAIN ■ In Spain, Instruction I/2022 of the Ministry of Interior states that the mere existence of non-cancelled serious or very serious disciplinary sanctions in the prisoner’s disciplinary file is no longer an objective reason to deny prison leave. It modifies Instruction I/2012, which provided that requiring an absence of misbehaviour for being granted prison leave (as per Article 47.2 of the Prison Law) equated a cancelled disciplinary file. In Spain, disciplinary files records are deleted every six months (for “very serious” disciplinary sanctions) or three months (for “serious” disciplinary sanctions) after the sanction has been complied with (Article 260 of the Prison Regulations). Therefore, in practice, prisoners who are sanctioned disciplinarily have no access to prison leave until their disciplinary sanction is deleted. Instruction I/2022 ends this. In doing so, it complies with judgment 859/2019 of the Supreme Court, handed down on 8 March 2019.
|
|
UKRAINE ■ In Ukraine, amendments to the Code of Criminal Procedure entered into force on 15 March 2022 that introduce a procedure to replace detention with military service. A detainee who wishes to do military service must send their application to the prosecutor, who may forward it to the competent court. The application should contain an opinion from a medical commission on the detainee’s fitness for military service. The court must consider the application without delay. People whose application has been accepted must report to the relevant authority within 24 hours in order to start their military service.
|
|
|
|
TORTURE & ILL-TREATMENT
|
|
|
HUNGARY ■ In Hungary, the Győr Regional Court of Appeal ruled on 13 January 2022 on the case of a prisoner suffering from mental health problems who was severely hit by prison staff (case no. Pf.I.20.162/2021/3). In order to be sent to the Forensic Observation and Mental Institution, the applicant threatened to commit self-harm, holding a blade in his hand and cutting himself with it. After he dropped the blade and stepped to the door, he was dragged on the floor and kicked numerous times. He suffered injuries that took eight days to recover. The civil court of first instance ruled that the physical and verbal violence imposed on the applicant was unjustified and unlawful. The appellate court increased the amount of restitution imposed by the court of first instance, on the grounds that prison guards abused their position of authority and numerical superiority and ill-treated the applicant publicly and in a cruel manner. Furthermore, the applicant was in a vulnerable position, unable (and not even attempting) to defend himself, and was known to suffer from psychological disorders and integration problems. The court also noted that other prison staff witnessed the scene and did not try to prevent or stop it. The court recalled that in the case of suicidal intent, prison staff should comply with the legal framework regarding the coercive measures that can be used.
|
|
RUSSIA ■ Amendments to the Criminal Code of Russia reformulating the domestic definition of torture were examined at the first reading by the State Duma (the lower house of the Russian Federal Parliament) on 16 February 2022. The bill still fails to criminalise torture as a separate crime (corpus delicti), and thus does not address a gap repeatedly emphasised by the UN Committee Against Torture as well as human rights organisations. While adhering more closely to the notion of torture under Article 1 of the respective UN Convention, the new definition (introduced as an annotation to Article 286 of the Russian Criminal Code – abuse of authority) does not set out all modes of public officials’ involvement in acts of torture prohibited under the Convention. More importantly, the draft makes it impossible to hold private individuals accountable for acts of torture, and leaves torture subject to the statute of limitations under domestic law.
|
|
|
|
TRANSFER
|
|
|
|
AUSTRIA ■ The Higher Regional Court of Vienna, Austria, ruled that the prison administration acted lawfully when rejecting a prisoner’s request to be transferred to a prison facility closer to his family on the grounds that this facility had high occupancy rates. While the prison in which the prisoner was detained had an occupancy rate of 82%, the institutions he requested his transfer to had occupancy levels of 90% and 104%. The court ruled that transfers are possible if they promote the reintegration of prisoners and if the population of the desired institution permits such a transfer (Oberlandesgericht Wien, 27.1.2022, 32 Bs 373/21v).
|
|
|
|
VISITS & CONTACT WITH THE OUTSIDE WORLD
|
|
|
BULGARIA ■ In Bulgaria, amendments to the Execution of Punishment and Pre-Trial Detention Act established the possibility of escorting a detainee “when there are exceptional reasons of a personal and family nature” provided that the leave was authorised by a judicial body. Until this date, escorts were only possible for criminal proceedings. These amendments are an attempt of the Bulgarian government to implement the ECtHR judgment Vetsev v. Bulgaria (no. 54558/15, 2 May 2019). The court found a violation of Article 8 of the Convention as a result of the authorities’ refusal to allow the applicant to attend his brother’s funeral.
|
LITHUANIA ■ In Lithuania, amendments to the Code on the Execution of Sentences entered into force on 1 January 2022. Among others, these amendments increase the number of visits allowed for all three categories of convicted prisoners. Prisoners held in ordinary regimes are allowed four visits (of up to three hours) per month, one of which may be long-term (up to 24 hours) and can take place without the supervision of a correctional facility staff member. Previously, prisoners were allowed one long-term (24-hour) and one short-term (three-hour) visit every two months. Prisoners in lenient regimes are allowed an unlimited number of visits per month (up to three hours), two of which may be long-term (up to 24 hours) and take place without the supervision of the prison administration. Previously prisoners in lenient regimes were allowed two long-term and two short-term visits every two months. Prisoners in strict regimes are now allowed one visit a month for up to two hours. These may take place online or in special premises of the prison facility, arranged in such a way that physical contact between the visitors and the convict is not possible. Previously prisoners in strict regimes could have one short-term visit every four months.
|
POLAND ■ In Poland, in February 2022 the Director of the Prison Service issued instructions to harmonise the interpretation of the phone usage time limit and ensure that prisoners can use that entire period regardless of the number of calls made. Under current legislation, a detainee can use a payphone once a day for a maximum of five minutes (excluding contact with their defence counsel). Until recently, in practice, many prison unit directors held that an inmate could only make one call and have one conversation per day (as a result, if a detainee had a three-minute conversation, the remaining 2 minutes were considered lost). In some units, even an unsuccessful attempt to make a telephone call was considered as an exercise of the right to use a payphone. The Director of the Prison Service’s instructions aim to allow each prisoner to fully use their five minutes. These instructions are the result of an intervention of the Polish Ombudsman following multiple complaints made by detainees.
|
|
GERMANY ■ The Augsburg Regional Court (Landgericht), Germany, specified the conditions under which the prison administration can intercept a letter written by a prisoner in a foreign language (LG Augsburg StVK 1009/21). According to Article 34 (1) no. 6 the Bavarian Prison Act, the prison administration may intercept letters if they are written in a foreign language “without a compelling reason”. In this case, the prison administration withheld a letter a prisoner wrote in Croatian, addressed to an acquaintance who speaks both German and Croatian. The prison administration based its decision on the requirements imposed on prisoners under the Bavarian Integration Act to be able to communicate fluently in German in everyday life after their release, and to participate in integration classes (which include German language lessons) while in detention. The court ruled that the decision of the administration was based on an inaccurate analysis of the prisoner’s situation (who was not fluent in German) and on the flawed assumption that a German language course would enable the prisoner to fluently communicate in German.
|
|
|
|
WORK
|
|
|
|
|
|
|
|
|
|
A special thank you to our members and associate partners for jointly drafting this newsletter!
|
|
|
|
|
|
|
|
|
|
This newsletter is funded by the European Union, UNAIDS and the Robert Carr Fund. Views and opinions expressed are however those of the authors only and do not necessarily reflect those of the European Union, the European Commission, UNAIDS or the Robert Carr Fund. Neither the European Union, the European Commission, UNAIDS nor the Robert Carr Fund can be held responsible for them.
|
|
|
|
|
|
|
|
|
|
