by Luigi LIMONE (*)
Living conditions in prisons are regulated by a variety laws and guidelines ranging from constitutional provisions to national criminal and penitentiary laws and international law principles. Relevant human rights provisions include, in particular, those protecting the right to personal liberty and clarifying the grounds on which it may be restricted (Article 5, ECHR and Article 6, EU Charter of Fundamental Rights), and those prohibiting torture and other forms of inhumane and degrading treatment or punishment (Article 3, ECHR and Article 4, EU Charter).
These rules, as interpreted by the competent courts, clarify the grounds on which deprivation of liberty may be based and the minimum standards that detention conditions must comply with. Both fundamental rights standards and broadly agreed criminal justice principles point to the conclusion that imprisonment should only be used as a measure of last resort in response to serious crimes, as it entails deprivation of the fundamental right to liberty.
While prison conditions are mainly a responsibility of Member States, the European Union has already started to deal with them, (see the 1000 pages research on the subject here) as clarified by the European Commission in its 2011 Green Paper and in the 2010 Stockholm Programme (under the pressure of the European Parliament…) as well as in many European Parliament specific Resolutions.
In order to promote mutual trust, judicial cooperation and the proper functioning of mutual recognition tools in the criminal law area (as foreseen by the EU Charter and by Article 82, TFEU), it is essential to ensure that adequate detention conditions exist in all Member States.
Several mechanisms have been created in Europe in order to monitor detention conditions in prisons. Such mechanisms are meant as a tool to prevent torture and ill-treatment of detainees, and, more generally, to verify detention conditions at any given time. In particular, the 1987 Council of Europe’s Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) created a monitoring mechanism which is empowered to visit any place within the jurisdiction of the States parties where persons are deprived of their liberty by a public authority.
Such a mechanism is a preventive tool against torture and inhumane treatment which aims to monitor both the active behaviour of law enforcement authorities, collecting allegations of violence and abuses, and the factual conditions of prisons and other detention institutions, verifying whether they comply with the standards which the CPT itself has developed over time. All 28 EU Member States are parties to the Convention and therefore subject to the monitoring mechanism it establishes.
In line with international standards, rules concerning the treatment of persons deprived of their liberty have been developed in the European context.
The European Prison Rules, first adopted in 1987 and then amended in 2006, are a set of recommendations emanating from the Committee of Ministers of the Council of Europe. As such, they are not binding, but they have been endorsed politically by the Council of Europe, as well as in several EU documents. (see a previous FREE Group post here)
The starting point of these recommendations is that no one is to be deprived of liberty except from a measure of last resort and in accordance with a procedure prescribed by law, restrictions placed on prisoners must be limited to those strictly necessary and proportionate and detention is to be managed so as to facilitate prisoners’ reintegration.
The Committee for the Prevention of Torture (CPT) has also developed very detailed standards concerning detention conditions, as well as good practices that are meant to reduce the risk of detainees being subjected to torture or other degrading treatment. In particular, the CPT has defined specific guidelines addressing overcrowding, determining for instance the exact minimum amount of space that each prison inmate must be afforded in a cell. It has also published its general standards with regard to detention conditions and treatment of prisoners.
Last but not least, the European Court of Human Rights has developed its case-law on detention conditions mostly on the basis of Article 3 ECHR which prohibit degrading and inhumane treatment or punishment. According to the Court, violations of Article 3 may arise not only by positive acts of ill-treatment and violence by State authorities over prisoners, but also through the imposition of degrading detention conditions or through lack of action in the face of allegations of ill-treatment between prisoners.
The Court has affirmed that “prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty”. They therefore continue to enjoy the rights to family life, to marry, to freedom of expression, to practise their religion, to access to a lawyer or court, and to respect for correspondence. As a result, any restrictions on these rights must be justified.
EP Hearing on Prisons’ systems and conditions in the EU
The objective of the hearing organised by the Civil Liberties Committee (LIBE) of the European Parliament on 9 February 2017 was to listen to experts in the field from different backgrounds to identify gaps in the application of existing rules and mechanisms and compare best practices in Member States. Among the common problems observed in European prisons, special attention needs to be paid to overcrowding, the use of pre-trial detention, the situation of vulnerable prisoners such as children and persons with mental disabilities, and the phenomenon of radicalisation. Therefore the works have been dealt with into four different panels.
1st Panel: The Council of Europe and respect for fundamental rights of offenders and conditions of detention
Prison conditions have been on the agenda of the Council of Europe since the 1960s. The existing mechanisms mainly involve monitoring and standard setting activities as well as assistance and support to Member States.
Although the instruments of the Council are non-legally binding, they have strong connections with the EU standards on detention conditions and treatment of prisoners.
For instance, the Council for Penological Co-Operation (PC-CP), which was set up the Committee of Ministers in June 1980 as an advisory body to the European Committee on Crime Problems (CDPC), contributes to drafting standards on detention conditions, writing reports and opinions and collecting information on the implementation of these standards. The Council for Penological Co-Operation (PC-CP) deals with, among others, children of imprisoned parents; the revision of European Prison Rules; restorative justice; prison overcrowding; staff recruitment, training and development; radicalisation to violent extremism.
According to the Council of Europe, one of the most challenging issues concerns foreigners. In 2015, 12.8% of foreigners were reported to be among the total number of inmates in European prisons, with 34.3% of pre-trial detainees among foreigners and 26.1% of EU-citizens among the total number of foreigners. Another crucial element refers to the costs of imprisonment, which are calculated on the basis of real expenditures. In 2014, they amounted to 21 billion Euros, with an average of 101.08 Euros spent for every inmate per day. However, huge discrepancies across countries were reported.
Additional challenges deal with probation, which remains a forgotten and ignored area; the existence of different legal systems and different legal and cultural traditions; dilapidated buildings, staffing and other resource issues; political pressure and fear of crime; lack of inter-agency co-operation at local, national and European level; the promotion of human rights standards in prisons.
2nd Panel: Overpopulation in French prisons and conditions of vulnerable people in detention
While Northern European countries provide examples of best practice in prison management, overpopulation is reported in some Southern European countries like Spain, Italy and Greece, in some Balkan Countries like Hungary and Bulgaria as well as in France.
Currently, French prisons host a total of around 70000 prisoners, with extremely serious concerns on overcrowding. In France, prison population rate ranges from 140% to 200% in, with a huge number of detainees being obliged to sleep on the floor.
Prison population rate in France has continued to rise over time while crime rate is currently diminishing due to a drop in burglary and thefts in particular. This increase is mainly caused by faster trials and longer prison sentences. In fact, 70% of faster trials have resulted in prison sentences and there has been an increase of prison sentences of 1.6 times over the last three years. Such an augmentation is linked to the diffusion of the terrorist threats, against which detention is perceived and used as a way of prevention for security reasons.
Existing prisons in France are prematurely ageing and need to be conformed to better standards. Although past experience proves that building new prisons does not solve overcrowding, conforming to better standards is always necessary where prisons are old and in bad conditions.
Overcrowding can have negative impact on vulnerable people and this holds particularly true for prisoners having psychological and psychiatric diseases. Most of the time these people do not receive necessary physical and mental health care due to the overcrowding of prisons’ hospitals. Such vulnerable categories should have reduction in their sentences, which could also be a measure to limit prison overpopulation.
3rd Panel: Reintegration of former prisoners – Human dignity and community safety
One of the most important issues linked to detention is the reintegration of prisoners in the community. Such reintegration has to be gradual and the preparation phases to the return of prisoners into the community are extremely relevant. Within this framework, the ECtHR judgements have helped define the field of reintegration as an important penological aim (Mastromatteo v Italy 24 October 2002; Stafford v UK 28 May 2002; Hirst v UK 6 October 2005; Dickson v UK 4 December 2007).
In the case of Vinter and others v UK of 9 July 2013, the European Court of Human Rights concluded that life imprisonment without a prospect of release violates Article 3 of the Convention (prohibition of torture, inhuman and degrading treatment and punishment) and that life-sentence prisoners are entitled to objective reviews of their situation in accordance with the ‘right to hope’, which is built upon the right to human dignity. With the case of Murray v the Netherlands of 26 April 2016 the Court has gone even further, establishing the right to a prison regime enabling life prisoners to rehabilitate themselves.
The reintegration process involves three different phases: a) an institutional phase, which involves the preparation of reintegration from the onset of imprisonment through an action plan to be established with the participation of the prisoner as well as the definition of institutional treatment skills and of reintegration goals; b) a structured re-entry phase, whose aim is to provide basic survival needs, such as shelter, food and financial supports, plus any special need if required. This phase involves the participation of the community of reintegration; c) the community reintegration phase, which involves the adjustment to the community and to quality of life issues as well as the cooperation between community agencies, local residents and family members.
4th Panel: Swedish Prison and Probation Service (example of good practice)
Swedish prisons provide an example of good practice in the fields of detention conditions and treatment of prisoners. Prisons’ overcrowding in Sweden is very limited and a decrease in the number of prisoners has been reported over the last 4 years.
The Swedish Prison and Probation Service (SPPS) is a governmental agency belonging to the Ministry of Justice. Its main tasks are to implement prison and probation sentences, to supervise conditionally released persons, to implement instructions for community service and to carry out pre-sentence investigations in criminal cases.
The SPPS employs over 9000 staff and it is the fourth largest governmental agency in Sweden. Its penal philosophy is to consider factors which favour sanctions other than imprisonment. As far as the treatment of prisoners is concerned, the SPPS aims to promote the prisoner’s adjustment in society and to counteract the negatives consequences of deprivation of liberty. The main idea is to reduce the risk of re-offending as well as preparing for release. According to this service, detention measures should be adapted according to individual risks. The individual treatment should be secure, humane and efficient, and crime as well as drug abuse should be prevented during the sentence.
In order to reach these goals, specific measures should be adopted: a) assessment of individual risk and needs; b) individual sentence plan in cooperation with the probation service; c) specific release measures planned form the outset of the sentence, such as halfway house, residential care/treatment institutions, permission parole in order to participate in work, education and treatment, structured treatment programs focusing on crime and drug abuse, vocational training activities and social skill implementation.
The SPPS has also identified probation as an alternative to imprisonment, since it reduces the risk of overcrowding and facilitates rehabilitation.
Many of the recommendations of the European Prison Rules are not widely respected among the Member States, even though there are several examples of good practice coming from Northern European countries in particular.
Prison overcrowding is a matter of concern and it could have extremely negative impact on vulnerable detainees, including children, women, LGBTI, elderly inmates, foreigners and physically and mentally ill inmates. Life-sentenced and other long-term prisoners other categories for which specific rules and recommendations are required.
When looking at prison conditions, it should be considered whether individual sentence plans are offered and whether they are properly designed and adequately implemented. These plans should include work, education and activities in preparation for release.
As regards reintegration programmes developed in prisons, they should be based on an individualised assessment of needs and risks and they should be specifically adapted during the pre-release stage in order to facilitate reintegration upon release.
(*) FREE Group Trainee