June-August 2023

In this compilation, the European Prison Litigation Network, its members and partners across Europe aim to inform national lawyers and civil society organisations about the most important legal developments on prison issues. We hope it enables you to better identify European trends and use them in your legal practice.
The compilation covers 14 European Union member states as well as Ukraine, Moldova, the United Kingdom and Russia.

ROMANIA ■ In July 2023, a law extending to pre-trial prisoners the right to receive intimate visits from their spouses or long-term partners, in a dedicated room within the prison, entered into force (Law 200/2003). Prior to this, only convicted prisoners could receive such visits.
Pre-trial detainees, like prisoners detained under the close and maximum-security regime, have a right to one three-hour long intimate visit every three months, provided that other conditions are met (absence of disciplinary sanction in a given period preceding the request for a visit, active participation in educational or work activities, involvement in psychological or social assistance programs). Other detainees, in open and semi-open regime, have a right to one three-hour visit every two months. The same conditions apply.

UNITED KINGDOM ■ In June 2023, the High Court quashed a prison governor’s decision to refuse a prisoner’s application to participate in a telephone interview with a journalist and further clarified the Prison Service Instruction (PSI) 37/2010 which regulates prisoners’ contact with the media (R (Alexander) v Secretary of State for Justice [2023] EWHC 1407 (Admin),16 June 2023).
The prisoner, who maintained his innocence, argued that the interview was part of his efforts to appeal his conviction. His application was refused by the prison director on the grounds that it wasn’t urgent and it would be more suitable for the prisoner to have contact by other means. When the decision was retaken, the prison director added the reasoning that contact with the journalist might distress the victim(s) and risked outraging public sensibility.
The court held that the governor had misinterpreted the requirement for urgency for telephone contact to be permitted. Although the PSI refers to urgency as a reason to allow telephone contact, this is not a prerequisite and is simply an example of when telephone contact rather than other forms of contact might be appropriate. Regarding the part of the decision that contact with the journalist would cause public outrage, while the court accepted that it was correct for the governor to be satisfied that distress or outrage would not be caused by the interview, it noted that in the case at hand the only victim of the offence was the prisoner’s father.
The court therefore did not accept that it was sufficient to account for distress caused to abstract crime victims. Furthermore, the court did not accept the prison director’s argument that the public would be outraged by a convicted murderer speaking about his case from prison as part of a claim that he was wrongly convicted. The court found the prison director’s decision to be an irrational blanket ban. In light of these findings, the decision was quashed, and the court did not need to consider wider challenges to the legality of the policy itself and the compatibility of the PSI with Article 10 ECHR.

BULGARIA ■ In July and August 2023, judgments issued by administrative courts show discrepancies in the approach these courts have towards disciplinary punishment other than solitary confinement.
In July 2023, in two different cases (no. 419/03.07.2023 and no. 453/13.07.2023, not available online), the Montana Administrative Court agreed to review such disciplinary punishments (respectively a three-month interdiction to participate in activities in and outside the prison and a written warning). In both cases, the court considered that the punishment is an individual administrative act and should therefore be subject to judicial review, as per the Bulgarian Constitution and the Code of Administrative Procedure. The punishments were overturned on procedural grounds, as the applicant had not been heard during the disciplinary proceedings. In the second case, the court also found that the legal basis for the punishment was not clear.
Conversely, in two subsequent judgments (not available online), the Sofia Administrative Court (no. 6471/28.07.2023) and the Pazardzhik Administrative Court (no. 1072/08.08.2023) ruled that disciplinary punishments other than solitary confinement are not subject to judicial review and can only be appealed before the Central Prison Administration (in those cases, the punishments were respectively: a three-month deprivation of food parcel and a written warning).
These two courts based their decisions on the wording of the Execution of Punishments and Pre-Trial Detention Act, which explicitly provides for a judicial review only for the sanction of solitary confinement.
These differences in approach create legal uncertainty and require harmonisation

AUSTRIA ■ In July 2023, the Parliament revised recently adopted amendments to the law on preventive detention of mentally ill offenders, under which prisoners detained under this regime would have been released without having been properly prepared (see our previous issue covering May-March 2023). The amendments adopted in November 2022, which were widely criticised and provoked questions of the government, modified the sentence threshold for preventive detention to be ordered (a crime punishable by a minimum of three years’ imprisonment, up from one year previously) and set a 15 year maximum duration of the prevention detention ordered for a crime committed as a juvenile. Consequently, they would have deprived the preventive detention of dozens of prisoners of their legal basis, leading to their release in September 2023, on the amendments’ date of entry into force.
The revised amendments provide that detainees held in preventive detention must fulfil the requirements for conditional release and receive adequate preparation prior to their release. Furthermore, in respect to crimes committed as a juvenile, they abolish the 15-year limit for preventive detention and introduce mandatory conferences (Fallkonferenz) to be held after 10 years of detention and every three years thereafter. The conference shall clarify which measures and directives can be imposed to reduce the risk of recidivism and/or to prepare for a future conditional release. Such a conference must involve the detainee’s psychiatrist, therapist, the probation service, the detainee themselves, and possibly their relatives. Subsequently, a court will decide on conditional release and is entitled to set directives, such as the obligation to undergo further therapy or to reside in an “assisted living facility” (Betreutes Wohnen).

POLAND ■ A law recently entered into force that defines procedures to ensure the quality of healthcare services (including adequate staffing and equipment) excludes medical services provided in prison from its scope.
The Commissioner for Human Rights, in separate letters sent to the Prison Service and the Health Ministry, argued that this exclusion of prison healthcare from the scope of the law raises doubts about its compliance with the principles of equal treatment, the right to health protection, and the duty of public authorities to ensure equal access to publicly funded healthcare services for citizens, regardless of their financial situation.
Both recipients declined to change the law to include prison healthcare. The Central Board of Prison Service pointed out that including incarcerated individuals in the newly established mechanism would limit the quantity and type of medical services provided to inmates. The Ministry of Health emphasised that it is not the competent authority to intervene in the organisation and provision of medical services in healthcare facilities operating within penitentiary institutions, which remain under the authority of the Ministry of Justice.

Also in Poland, in a reply to a letter sent by the Commissioner for Human Rights, the Commissioner for Patients’ Rights (CPR) declared himself incompetent to handle complaints about inadequate medical care in penitentiary institutions. According to the CPR, as prisoners being deprived of liberty, they are not entitled to the same rights as patients in the general society. The Commissioner for Human Rights, in a second letter, insisted that prison facilities are under the obligation to uphold patients’ rights and that the CPR remains therefore the competent authority to safeguard these rights. Furthermore, in the past, the CPR has examined violations of patients’ rights in penitentiary facilities.

PORTUGAL ■ In July 2023, a new Mental Health Law (replacing the 1998 Mental Health Law) abolished the possibility for a court to renew for two years, without a maximum limit, the confinement security measure for people who committed a crime but are deemed criminally irresponsible due to mental health disorders. This possibility existed for crimes punished with a maximum sentence of more than eight years’ imprisonment and in practice resulted in indefinite internments – by comparison, life imprisonment is absent from Portuguese criminal law.
Individuals held under this regime could be detained either in mental health units governed by the Ministry of Health or in mental health facilities within the prison system (for example, within a psychiatric wing of a prison hospital or within specific mental health clinics, governed by the Ministry of Justice).
Following the amendments’ entry into force in August 2023, confinement security measures that have already exceeded their maximum duration (e.g., the maximum sentence foreseen by law for the crime committed) ceased. There were 46 people in this situation. To prepare their release, a methodology has been implemented, involving the Ministries of Justice, Health and Social Security, to secure an individualised response to each case, considering that the majority had lost family support.
Under the new legal framework, individuals who committed a crime but are deemed irresponsible due to mental health disorders may undergo involuntary treatment, if they pose a danger to themselves or others and if they refuse treatment. Such care must be provided on an outpatient basis, and in exceptional cases through hospitalisation.

SPAIN ■ In August 2023, the General Secretariat of Penitentiary Institutions announced the rehabilitation of Alcalá de Guadaíra prison in Sevilla (currently a women’s prison) and its conversion into a penitentiary psychiatric hospital to provide specialised healthcare to prisoners with mental illness disorders. The estimated cost is EUR 5.8 million and it’s expected to take 12 months, with a planned opening in 2025.
Currently, Spain has two prison psychiatric hospitals: one in Alicante, a stand-alone establishment located just outside of the perimeter of the Alicante Fontcalent Prison complex; and a second within the perimeter of the Sevilla I Prison complex. A forensic psychiatric unit also operates within Brians I Prison, in Catalonia.
The General Secretariat of Penitentiary Institutions also announced plans to build a new forensic psychiatric hospital in Valencia, necessitating the closure of the Alicante Prison psychiatric hospital. These plans were communicated by the Spanish government to European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), which regretted the lack of institutional and functional separation between prison psychiatric hospitals and ordinary prisons.

BELGIUM ■ In June 2023, the court of first instance of Hainaut ordered authorities to reduce the occupancy rate of Mons prison to 110% within six months (down from 122% at the time of judgment), under penalty of a fine of EUR 2,000 per day and per prisoner exceeding the maximum capacity of the prison. The court also ordered authorities to end overcrowding in the prison within five years. The city of Mons’ mayor also established a maximum capacity of 40 women and 344 men in the prison (for an actual capacity of 27 and 274 places respectively).
The situation in Mons prison is not isolated, as the country is experiencing a structural problem of overcrowding. Furthermore, in a call released in August 2023, the Belgian section of the International Prison Watch warned against a possible rise of prison overcrowding in the country following the entry into force of amendments providing for the execution of prison sentences of six months to two years, which were previously converted into non-custodial sentences.

FRANCE ■ In August 2023, the Administrative Tribunal of Montpellier, acting as interim relief judge, rejected a request to suspend further entry into Perpignan prison to ease overcrowding (no. 2304698, 22 August 2023). The request was filed by two NGOs (the French Section of the International Prison Watch and the Association of Lawyers for the Defence of Prisoners’ Rights) following the publication by the National Preventive Mechanism (NPM) of a visit report on this prison, highlighting the alarming rate of overcrowding (the occupancy rate of 212.2%, up to 279% in the men’s wing), appalling detention conditions, disproportionate use of force by prison officers and abusive use of restraints.
The request to suspend further prison entries was based on a recent prison administration decision to temporarily suspend further entries into the overcrowded prison of Bordeaux-Gradignan.
The tribunal rejected the applicants’ request as being out of the scope of its competence as interim relief judge. Other requests made by the applicants were granted: the judge ordered authorities to remedy the unsanitary detention conditions and to open an internal investigation of allegations of ill-treatment by prison staff.

PORTUGAL ■ In July 2023, the Ombudsperson’s office, acting as National Preventive Mechanism (NPM), released its 2022 annual report. Among other things, the report stresses that the Portuguese prison system is overcrowded. As of 31 December 2022, the average prison occupancy rate was 100.83%. More than half of the country’s prisons were overcrowded and 44% of the prison population were held in overcrowded facilities (see also the joint communication from EPLN and Forum Penal to the Committee of Ministers of the Council of Europe).

ROMANIA ■ In August 2023, during a press conference, the General Director of the National Prison Administration stated that prison overcrowding will be resolved by the end of 2024. He referred to a 2020 memorandum providing for the development of prison infrastructure and the extension of the capacity of many Romanian prisons until 2024 to ensure that each prisoner has 4 sq. m. of personal space “as required by European standards”. In 2021, 216 detention spaces were put into use, and an additional 505 in 2022.
However, it’s unlikely that prison overcrowding will be solved by these measures alone, as this problem has been described as a “longstanding structural problem” requiring a “rational and coherent penal policy” by the Committee of Ministers of the Council of Europe in June 2023. Council of Europe bodies have consistently argued that “constructing new prisons and/or permitting prison population inflation will not provide a lasting solution to the problem of overcrowding” (see the 31st General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)).

UNITED KINGDOM ■ In June 2023, the Criminal Justice Act 2003 (Home Detention Curfew) Order 2023 (SI/2023/390) entered into force. By amended section 246(1)(a) of the Criminal Justice Act 2003, the order increases the maximum period of release on home detention curfew (early release on electronic tag) from 135 to 180 days. This increase is designed to reduce prison overcrowding

MOLDOVA ■ In August 2023, amendments to the criminal code entered into force. Among other things, the new criminal code provides that accused persons having concluded a guilty plea agreement will benefit from a reduction of one-third of the minimum and maximum punishment limits. Similarly, accused persons requesting the trial to be based on the evidence presented during the criminal investigation phase will benefit from a reduction of one-quarter the said limits. The effect of these amendments, provided the arrangements mentioned are used, may lead to a diminution of criminal detention periods in the country. When drafting the amendments, authorities took inspiration from legal frameworks in France, the United Kingdom, and the United States of America

RUSSIA ■ In June 2023, amendments to the Code of Criminal Procedure entered into force. They oblige courts to consider alternatives to pre-trial detention for persons accused of economic crimes to allow them to carry out their business activities. Additionally, the extension of pre-trial investigation beyond two months is now subject to approval by a head of a regional investigative body (previously, an investigator in charge of the case was able to extend the investigation by 6 months without such approval)

HUNGARY ■ In July 2023, the Prison Service adopted an order (entered into force on 1 September 2023) enabling prisoners to consent in writing that the prison administration is entitled to use up to 50% of the money sent to their escrow accounts to settle debts owed by the prisoner to the administration (incurred e.g. because the prisoner had to be provided with special medication or other medical consumables or if they needed transport for some reason).
While people sending money to prisoners can specify the use of this money (settle a telephone bill, buying food), in this case, debt recovery will take precedence, regardless of the initial intended purpose for which the money was sent. From the order’s wording, it remains unclear whether the prison administration can also use the money set aside for the prisoner’s release. While this arrangement shall remain voluntary, there are concerns that, in practice, prisoners will agree to it under pressure from prison staff.

RUSSIA ■ In July 2023, the Code of Criminal Procedures was supplemented with a normative mechanism for the protection of convicted prisoners’ property, including their accommodation, left unsupervised for the duration of their imprisonment (Federal Law of 10 July 2023 No. 320-FZ). Under the new provisions, courts, at the request of sentenced persons, are able to order interim measures, for instance, freezing any transaction of the protected property, prohibiting the registration of new residents at the premises, or sealing the premises.

BELGIUM ■ In Amendments to the 2005 prison law proposed by the government could cause a restriction of prisoners’ right to an effective remedy and limit the scope of independent prison monitoring ensured by the Central Prisons Supervisory Council (CCSP) and its affiliated surveillance commissions, composed of volunteers.
If adopted, the amendments would deprive the CCSP and surveillance commissions of access to documents unrelated to deprivation of liberty (thereby limiting the monitoring to organisational aspects of detention) and to CCTV footage (whereas these are essential to establish the truth of incidents occurring in prison). As regards prisoners’ right to complain, the amendments would suppress remedies (introduced in 2020) against decisions of assignment to a given prison or transfer to another, and decisions of assignment to specific security regimes. Furthermore, the amendments would significantly modify other remedies available, reduce both their availability and effectiveness, thereby weakening the judicial protection of prisoners.
The CCSP published three opinions (see here, here and here) and one communication on the proposed amendments, arguing that they violate both the constitution (which guarantees the right to access to justice) and Belgium’s human rights obligation as a member of the Council of Europe. It remains unclear to date whether the CCSP’s criticisms have been heard. The amendments are expected to be presented in Parliament in the coming weeks.

RUSSIA ■ As of August 2023, it is estimated that 25,000 prisoners have been recruited by the Ministry of Defence to wage war in Ukraine (see the joint submission from EPLN and Russian Behind Bars to the UN Special Rapporteur on the human rights situation in the Russian Federation). Recruitment campaigns take place in most Russian regions (except for the Chechen Republic), as well as in regions of Ukraine under Russian occupation.
Most of the prisoners recruited by the Ministry of Defence were formally attached to the Storm Z battalion and deployed on the frontlines as a detachment of the Russian army’s 71st regiment. According to relatives, they are not paid their promised salaries and social benefits, nor are they provided with necessary medical care. An unspecified number of prisoners who took part in the war against Ukraine have been pardoned by presidential decrees.

UKRAINE ■ In July 2023, a law providing for a number of changes in penitentiary institutions during wartime and a post-war period entered into force (Law 3185-IX). The law enables prisoners of war (POWs) and POWs found guilty of war crimes committed on Ukrainian territory to be placed in camps, provided that they are separated from one another.
The law also allows for the detention of life-sentenced prisoners in specific sectors of pre-trial detention centres. Similarly, juveniles can be detained in adult colonies, as long as they are not detained together with adult prisoners. Among other significant changes, the law establishes a paid service of cells with better detention conditions in remand detention centres, and enables the prison administration to use “audio-visual, electronic and other technologies” (without further details) to prevent escapes and the commission of criminal offences.

BELGIUM ■  In June 2023, the Court of Auditors published a report on public-private partnerships (PPP) entered into for the management of prisons. PPPs were first created in 2008 when, faced with budget constraints and the problem of overcrowded and dilapidated facilities, the Belgian authorities sought to have recourse to the private sector to design, build, finance and maintain prisons.
While the court acknowledges that the prison administration gained experience by managing these contracts, it found the human resources allocation to be insufficient. Furthermore, it pointed out that such partnerships continue to be used despite the lack of a proper cost-benefit analysis justifying their use

BULGARIA ■ In July 2023, the Burgas Administrative Court, in two different decisions, awarded very low compensations to prisoners held in inadequate detention conditions. In the first case, the applicant had to share a 17 sq. m. cell with five to six other inmates. The cell was also infested with bed bugs and cockroaches (which caused him an allergic reaction necessitating medical treatment), and the applicant’s mattress was decaying. While the first instance court did not allow compensation (as the detention conditions were found to be below the threshold of the severity of Article 3 ECHR), the Burgas court awarded a low amount of BGN 250 (approx. EUR 128).
In the second case, the applicant complained that his cell was infested with bed bugs and cockroaches, that his mattress was rotten and decaying, that he was provided with insufficient food and did not have access to normal bathing water and adequate medical services. The court found a violation of the applicant’s rights in respect of the presence of bed bugs and cockroaches and of the lack of access to normal bathing water but dismissed the remainder of the application and awarded BGN 180 (EUR 92) compensation.
Given the very low amounts awarded as compensation for the treatment endured, these two cases, which represent a broader practice of Bulgarian administrative courts (see our previous issue covering March-May 2023), cast doubt on the effectivity of the compensatory remedy put in place in 2017 in the application of the pilot judgment Neshkov and Others v. Bulgaria (nos. 36925/10 and others, 2015).

FRANCE ■ In June 2023, the Administrative Tribunal of Cergy-Pontoise, acting as interim relief judge, found that the authorities had not implemented previously ordered measures aimed to improve detention conditions in Nanterre prison, and ordered additional urgent measures (no. 2307209, 30 June 2023). The same tribunal, solicited by the local Bar Association and two NGOs (the French section of the International Prison Watch and the Association of Lawyers for the Defence of Prisoners’ Rights) had already found the prison’s detention conditions to be inadequate in December. The applicants decided to file a subsequent complaint based on the findings from an unannounced prison visit carried out by the vice-chairman of the local Bar Association, which showed that the above-mentioned measures had yet to be implemented. The right for Bar Associations chairpersons to carry out unannounced visits to prisons was introduced by a law in December 2021.

HUNGARY ■ In July 2023, amendments to the law on petty offences entered into force. They provide for extended possibilities for individuals wrongfully detained to seek compensation. Under the previous legal framework, compensation was possible only in the case of a detention imposed during a criminal procedure which eventually found the person in question to be innocent. The amendments extend this possibility to new situations: when a detention has been ordered as a result of an unpaid fine and the fine has been withdrawn or the detention was found not to be enforceable (because the person was disabled or was over 12 weeks pregnant), or if, following an appeal, a lighter sanction (shorter detention, non-custodial sanction) is imposed.
While this is a positive development, significant shortcomings remain in the new legal framework. First, the compensation for each day spent in detention is low (HUF 7,000 or approx. EUR 18). Second, compensation is not automatic and requires technical procedures to be initiated, which can discourage wrongfully detained people from seeking compensation. Third, no compensation is awarded for wrongful detention shorter than 72 hours.

POLAND ■ In June 2023, the Committee of Ministers of the Council of Europe registered a joint communication from the Helsinki Foundation for Human Rights (HFHR) and the National Bar Association (NRA) on the case Burża v. Poland (no. 15333/16, 2018) on the excessive duration of pre-trial detention in the country. In their communication, HFHR and NRA argue that this problem is of a systemic nature and remains acute. Among other factors, they point at the brevity and repetitiveness of a significant number of court decisions extending remand detention, protracted criminal proceedings, and the political and legal environment in which the prosecution operates (particularly its dependence on the ruling parliamentary majority).

PORTUGAL ■ In June 2023, the Supreme Court rejected as inadmissible a habeas corpus filed by an ill prisoner arguing that his detention conditions were inadequate and that he was not provided with appropriate medical treatment (no. 155/20.8JELSB-M.S1, 22 June 2023). The court ruled that the claims made by the applicant do not fall within the scope, strictly defined by law, of the habeas corpus.
Poor detention conditions and inadequate medical treatment provided in prison do not determine the legality of deprivation of liberty. The court argued that should they materialise during the execution of the said measure, they must be examined under the non-contractual liability of the state and/or the entities that supervise the terms of execution of detention/imprisonment measures. Such complaints should be directed to the administration of the prison facility concerned, to the Directorate-General for Prison and Reintegration Services, the Ombudsperson’s office, or the competent court. As argued by EPLN and Forum Penal in their joint communication to the Committee of Ministers of the Council of Europe, there are currently no effective remedies available to prisoners wishing to challenge their detention conditions.

RUSSIA ■ In June 2023, amendments aligning the Code of Criminal Procedure with the regulations on the state of war entered into force. Under the new version of the code, it is now formally allowed during a state of war to detain a person without a court order for up to 30 days.

LITHUANIA ■ In June 2023, the Director of the Service and the Director of the Probation Service adopted an order regulating the procedure for the admission of prisoners to halfway houses and several aspects of prisoners’ daily life therein (work, education, resocialization, personal belongings, schedule, healthcare). The order was adopted to adapt existing regulation to the new Code of the Execution of Sentences that came into force on 1 January 2023. The new order provides that prisoners held in halfway houses must work and/or study. It specifies that prisoners in halfway houses must find an occupation within a month following their admission or after having lost their occupation. Although the Lithuanian Prison Service can propose job offers to convicts, if it does not have any job offers to propose, prisoners must find work on their own. If prisoners fail to meet this requirement without justifiable reason, they are to be transferred to a semi-open prison.
Also in Lithuania, a new order from the Director of the Prison Service updates rules of functioning of Prisoners Councils (Nuteistųjų kolektyvo tarybų nuostatai). These councils, composed of prisoners, were created in 2021 for prisoners to be able to raise issues encountered in detention and to build dialogue between prisoners and prison staff. The order provides that civil society organisations (in addition to state and local institutions) can be invited to take part in councils’ activities pertaining to prisoners’ reintegration

POLAND ■ In August 2023, the Ministry of Justice issued a negative opinion on the Commissioner for Human Rights’ proposal to remove recently adopted amendments, introducing the possibility to impose life sentences without parole, from the Penal Code. Pursuant to these amendments, which entered into force on 1 October 2023, such penalty could be imposed on the basis of specific factors (nature and circumstances of the offence, individual characteristics of the offender) that suggest that a release of the offender would pose a lasting danger to the life, health, freedom, and sexual freedom of other people. Life sentences without parole can also be pronounced if the offender has previously been sentenced to life imprisonment or a prison term of not less than 20 years, for a crime against life and health, freedom, sexual freedom, public safety, or a terrorist offense.
Arguing that such sentences could lead to violations of the prohibition of torture and inhumane and degrading treatment and could result in other European countries’ refusal to extradite individuals to Poland because of the sentence they may face, the Commissioner for Human Rights proposed removing the amendments from the Penal Code. The Ministry of Justice rejected the proposal, arguing that the imposition of such a sentence will not automatically result in the permanent incarceration of the offender, who will still have the possibility to apply for presidential pardon.

PORTUGAL ■ In August 2023, on the occasion of World Youth Day, an amnesty law reduced sentences of up to eight years’ imprisonment by one year for people between age 16 and 30 at the time the offence was committed, and for offences committed before 19 June 2023. The scope of the law also includes accessory sanctions relating to offences, as well as disciplinary offences. According to media reports, 400 people benefited from the amnesty law.

UNITED KINGDOM ■ In June 2023, the Court of Appeal ruled on the case of a prisoner who was recalled to prison more than six month after his sentence had expired (R (Kessie-Adjei) v Secretary of State for Justice [2023] EWCA Civ 720, 23 June 2023). This was an appeal of an Administrative Court decision refusing a claim that detention following recall was in breach of Article 5 of the European Convention on Human Rights.
The appellant had been released from a 30-month determinate sentence on licence. Before the expiry of his sentence, his licence was revoked. He was not told of this by his offender manager and was not returned to prison until over a year after the revocation, i.e., more than six months after he was led to believe by his offender manager that his sentence had expired. He served 49 days in prison pursuant to the recall, since the Secretary of State for Justice allowed a third of the time spent unlawfully at large to count towards the sentence (pursuant to Prison Service Instruction (PSI) 3/2015, specifying the conditions of application of section 49(2) Prison Act 1952, the Secretary of State has the power to take discretionary decision on the detention period after recall). The appellant argued that his detention following the recall was arbitrary, and that the PSI did not provide a sufficiently foreseeable basis for the exercise of its discretionary power by the Secretary of State.
The Court of Appeal rejected both claims. While acknowledging that there had been an “egregious level of administrative incompetence” (para. 48) in the case at hand, it held that the appellant’s period of detention was not arbitrary so as to breach Article 5 ECHR, as the delay in recall did not break the causal link between the sentence of the court and the detention. The court did not indicate what length of delay might cause such a break but stated that “any challenge to detention following a very long delay probably would be a conventional public law challenge based on irrationality or legitimate expectation” (para. 42).
The court also rejected a claim that the PSI did not provide a sufficiently foreseeable basis for the exercise of that discretionary decision, and so resulted in detention in breach of Article 5 ECHR. This is because the detention’s lawful basis was the sentence of the court, not the PSI. In any event, by providing that the discretion might be exercised in “exceptional circumstances” the PSI was “sufficient to allow a prisoner to understand the basis on which the Secretary of State would apply the policy” (para. 47).
In its judgment, the court also made reference to the Joint National Protocol for the Recall Process for Offenders Subject to Licence, which specifies the actions that each body undertakes to complete during the recall process – and which clearly went awry in this case. The court also reiterated the expectation that “[t]he police are responsible for apprehending offenders who are subject to emergency recall within 48 hours and, in all other types of recalls, within 96 hours of the revocation order being issued by PPCS.” (para. 7.3).

MOLDOVA ■  Statistics released in June 2023 by the National Bureau of Statistics indicate that the country had a population of 2.6 million as of 1 January 2023. This updated figure was obtained with the implementation of a new calculation methodology. The figure is 1.4 million less than the population basis used by the Council of Europe (CoE) in its report on prison statistics in Europe for 2022 (as of 1 January 2022, Moldova was reported to have 4 million inhabitants). This updated figure impacts the Moldovan prison population rate, which, with the previous figure, was already the 12th highest among CoE countries (159 inmates per 100,000 inhabitants).

MOLDOVA ■  In August 2023, the civil society organisation Promo-LEX submitted a communication to the Committee of Ministers of the Council of Europe on the measures adopted by the Moldovan government to implement the group of cases Levinţa v. Moldova (no. 17332/03, 2008) concerning torture and ill-treatment committed by police. In its submission, Promo-LEX looked more broadly at the general measure taken by the authorities and at their impact on victims of torture and ill-treatment in detention.
One of these measures is the establishment (by Order no. 77/2013 of the General Prosecutor’s Office) of mechanisms for identifying, registering, reporting and examining complaints of torture or ill-treatment, including in prisons.
However, according to Promo-LEX findings, the procedures set out are not fully observed, because, since the entry into force of the order in 2014, less than 1% of bodily injuries have been recorded in accordance with its provisions, only a third of bodily injuries allegedly caused by torture of ill-treatment have been reported to the Prosecutor’s Office, and less than 4% of these have been examined in accordance with the provisions of the Criminal Procedure Code. At both the identification and registration stages, numerous failures have been identified regarding the conservation of evidence and maintenance of their confidentiality. These deficiencies reinforce a pervasive culture of impunity for perpetrators of torture and ill-treatment (2021 data shows that out of a total of 511 complaints, a criminal investigation was ordered in only 9% of cases)

GERMANY ■ In June 2023, the Federal Constitutional Court (FCC) found the current system of remuneration for prison-employed prisoners to be unconstitutional and ordered it be aligned with the objective of social rehabilitation of prisoners by 2025 (2 BvR 166/16 and 1683/17, 20 June 2023). While the decision concerned the prison laws of Bavaria and North Rhine-Westphalia, the court implied that other federal states must change their system as well.
Currently, prisoners’ wages vary between EUR 1.37 and 2.30 per hour (depending on the work), and one year of uninterrupted work could result in a prisoner’s sentence being reduced by six days (in Bavaria) to eight days (in North Rhine-Westphalia). Prisoners’ average hourly wage corresponds to 9% of the average wage outside prison.
The court found the system in place in the two federal states to be in breach of the constitutional principle of social rehabilitation of prisoners, derived from the right to development of personality (Article 2, para. 1 of the German Constitution) and the right to human dignity (Article 1, para.1). The court ruled that prison laws must integrate the principle of prisoners’ social rehabilitation, which should be elaborated by the legislator in a holistic manner and reflect the state of scientific knowledge on the issue. Consequently, the legislator must state the objective of work in prison and explain how the payment system can help reach this goal. The legislator can decide on the payment system (which can be monetary or non-monetary and may comprise inclusion into the statutory health and pension scheme system or debt reduction).
The FCC took six to seven years to rule on the cases after the complaints were filed in 2016 and 2017 respectively. After the public hearing was organised in early 2022, it took more than a year to deliver the judgment. Neither working prisoners collectively nor the applicants individually were granted compensations for the past unconstitutional payments. Only the applicants’ legal costs will be reimbursed.
The proceedings took place without the applicants’ participation. The applicant from Bavaria wanted to take part in the public hearing, but the local prison administration and Prison Sentencing Court rejected his application because he was not officially summoned by the FCC, which simply stated that the prisoners can take part in the hearing without obligating the applicant to do so.
In the 1970s, the legislator planned to increase the average wage to 40% of wages outside prisons, but this never materialised. An improvement came from the first FCC decision on prison work in 1998, which resulted in an increase of prisoners’ wage by 80% (2 BvR; 441/90, 1 July 1998).

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 or the Robert Carr Fund. Neither the European Union nor the Robert Carr Fund can be held responsible for them.