October-November 2022

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

CONTENTS >> CONTACT WITH THE OUTSIDE WORLD, DETENTION CONDITIONS, DETENTION REGIME, FREEDOM OF EXPRESSION, HEALTH, LIFE SENTENCE, MONITORING BODIES, PERSONAL BELONGINGS, PREVENTIVE DETENTION, PRISON LAW, PRISONS IN WARTIME, PRIVATE AND FAMILY LIFE, PROCEDURAL RIGHTS, SENTENCE ADJUSTMENT, SOCIAL RIGHTS, TORTURE

GERMANY ■ In Germany, amendments to the Bavarian Prison Act (BayStVollzG) that came into force on 1 November 2022 extend the possibility for prisoners to make phone calls and introduce the possibility of making video calls. Until then, Bavaria had one of the most restrictive regulations on telephone calls compared to other federal states.

LITHUANIA ■ On 25 November, the Ministry of Justice of Lithuania registered draft laws amending the Code on the Execution of Sentences and the Law on the Enforcement of Detention on Remand. The draft laws aim to establish conditions and procedures to restrict prisoners’ rights to communicate with other persons, for the purpose of preventing future offences, protecting the rights and freedoms of other persons and ensuring security in penitentiary institutions. The proposed amendments would allow the director of the penitentiary institution to temporarily restrict prisoners’ rights to receive and send letters and objects, to have meetings, and to make telephone calls (for a period of up to three months, with the possibility to extend this period without limitation). The prison director could also ban a prisoner from going on temporary prison leave and limit prisoners’ contact with other prisoners. Prisoners’ rights to communicate with their relatives shall be restricted only in exceptional circumstances and for up to one month (with the possibility to extend it, the number of extensions is unlimited). These restrictions must be lifted as soon as they become unnecessary. Communication with lawyers, state and municipality institutions as well as international organisations would not be restricted.

BELGIUM ■ Prison overcrowding remains endemic in Belgium, as highlighted in a CPT report released in November 2022. According to figures recently published by the Directorate General of Prisons as of 25 November 2022, 231 mattresses were installed on prison cell floors, mainly in prisons located in Flanders (i.e. 83 mattresses in Ghent, 82 in Antwerp, 24 in Bruges). This situation is all the more worrying given that the Belgian Government recently stated that it had installed bunk beds in February 2022, and 281 additional beds in September 2022 to alleviate the problem.

Also in Belgium, the court of first instance in Liège ordered the Belgian state to reduce prison density to 110% within one year under penalty of a fine of EUR 1,000 per day and per prisoner exceeding the maximum capacity of Lantin; put an end to the overcrowding of Lantin prison within 5 years under penalty of a fine of EUR 2,000 per day and per inmate exceeding the maximum capacity of Lantin; and put an end to the inhuman and degrading treatment present in Lantin within one year under penalty of a fine of EUR 1,000 per day.

FRANCE ■ In France, the Supreme Administrative Court (Conseil d’État) rejected the application filed by the Bordeaux Bar and two civil society organisations (OIP-SF and A3D) without a hearing. They had appealed against a ruling of the Administrative Court of Bordeaux, which rejected the main part of their request for interim measures to remedy inadequate detention conditions at the Bordeaux-Gradignan prison. The initial application was filed following the recent publication of recommendations by the French National Preventive Mechanism (CGLPL), which identified a series of shortcomings causing serious violations of fundamental rights. While acknowledging the existence of serious violations of fundamental rights, the Administrative Court of Bordeaux considered that most of the measures requested by the applicants were of a structural nature and could not be ordered by a judge and implemented in an emergency – a conclusion that the applicants contested.
The decision of the Supreme Administrative Court to reject the applicants’ appeal without a hearing, despite the mention of fundamental rights violations in the CLGPL’s emergency recommendations, was strongly criticised by the applicants who recalled that the ECtHR had recently condemned in the quasi-pilot judgment J.M.B v. France (No. 9671/15, 20 January 2020) the inadequate conditions of detention in France, as well as the absence of an effective remedy in this regard. Also in France, the lower house of the Parliament adopted an amendment extending the possibility to derogate from the principle of single-celling for another five years, until 31 December 2027. The principle of single-celling was established by law in 1875. Although reaffirmed in the 2009 prison law, its application has been postponed several times on the grounds that new space for prisoners should be built in order to ensure the effective implementation of the principle.

HUNGARY ■ In Hungary, the government mandated that state institutions, including prisons, not heat above 18 degrees Celsius. Other rules governing life in prison remain the same: detainees are not allowed to wear additional clothes on their uniform, to lie in the bed under a blanket during the day or to exercise in their cells. Furthermore, warm water is not systematically provided in prison. Recent reports from detainees and their relatives suggest that the number of prisoners falling ill is already above average in many penitentiaries. The Hungarian Helsinki Committee called on the Ombudsperson to address the issue.

MOLDOVA ■ On 19 November 2022, the Moldovan Ministry of Justice held the first meeting of a working group tasked with defining detention regimes for prisoners. The aim is to bring national law into line with the international and European prison standards to which the country has committed itself. Moldovan legislation does not allow for the individualisation of detention regimes, nor for the revision of the prison regime imposed on the basis of the security level established at the sentencing stage. The objective of the working group is to provide a legal basis to classify prisoners according to the level of risk they pose, with prisoners being assessed regularly, and to draw up individual sentence plans to prepare prisoners for release.

SPAIN ■ In Spain, a law entered into force on 7 October 2022 that modifies essential aspects of sentencing procedure and the prison regime imposed on people who committed sexual aggression (Law 10/22). As a result of the law, for prisoners convicted of certain sexual crimes, eligibility for the open prison regime is dependent on an assessment of their successful completion of a treatment programme (Art. 36.2 of the Criminal Code). The crimes listed are: crimes of sexual aggression, prostitution or sexual exploitation of children under 16 years of age, trafficking of human beings when the victim is a minor or disabled person in need of special protection. Importantly, the law also imposes the obligation to adopt measures to prevent sexual aggressions in prison on the prison administration, to establish procedures for dealing with complaints of victims of sexual aggressions in prison, and to ensure that prison staff are trained in a gender perspective and comprehensive protection against violence.

The law also provides that all crime violating an individual’s sexual freedom shall be qualified as a “sexual aggression”, where a distinction previously existed between “sexual abuse” (an offence committed without violence or intimidation) and “sexual aggression”. Finally, the law also lowers the minimum sentence for some offences, resulting, in some cases, in a reduction of sentences or early release of offenders who had already been convicted (in application of the principle of retroactivity of the most favourable criminal law, enshrined in art. 2.2 of the Criminal Code). This measure has been the cause of intense controversy in the country.

GERMANY ■ The Regional Court (Landgericht) of Arnsberg, Germany, ruled on 2 November 2022 that the prison administration’s refusal to activate a journalist’s telephone number based on a ministerial directive was unlawful (IV-2 StVK 288/21). The court ruled that the prison administration’s decision restricted the prisoner’s freedom of expression, which is a constitutional right and can therefore only be restricted by law – not by directive.
The prison administration should have based its decision on the Preventive Detention Act of North Rhine-Westphalia (SVVollzG NRW).The case concerned a prisoner held in preventive detention who requested that the phone number of a journalist be inserted into the prison’s internal telephone system, which would have enabled him to communicate with the journalist from his cell without any intermediate steps. The prison based its refusal on a directive in cooperation with the media, issued by the Ministry of Justice.

GERMANY ■ The Higher Regional Court (Oberlandesgericht) of Naumburg, Germany, ruled on 14 November 2022 that the general interdiction of wearing face masks imposed by the prison administration during residential and treatment group sessions was unlawful (1 Ws (RB) 75/22). The applicant, a prisoner held in preventive detention in Burg Prison (Saxony-Anhalt) complained that he was not allowed to wear a face mask during the sessions, which he stopped attending for this reason. The court ruled that there was no apparent legal basis for the order prohibiting the wearing of face masks. The court noted that outside prison, wearing a mask is still mandatory in some areas, while in others this requirement has been abolished. Nevertheless, citizens retain the choice to wear a mask in the latter areas, regardless of any obligation to do so. According to the court, there were no apparent reasons why this should be different for the prisoner.

MOLDOVA ■  On 29 November 2022, the Moldovan National Prison Administration held a meeting with representatives of the Ministry of Health and the National Public Health Agency to discuss a draft of regulation for the implementation of rules for the provision of healthcare in prison facilities. The purpose of the regulation is to regulate prison staff and the supervision of prisoners’ health, to implement general public health requirements in prison facilities, and to define the rights and obligations of medical workers and prisoners in the field of healthcare. Once finalised, the regulation will replace the current one, which does not meet current health and hygiene requirements and standards. Civil society organisations are participating in the discussion within the framework of the programme “Eastern Partnership – COVID-19 Solidarity“, launched by the Netherlands Helsinki Committee, AFEW International and the Czech NGO People in Need to align policies regarding the control of COVID-19 in places of detention with national ones.
Also in Moldova, two parliamentary committees held public hearings on the revision of the regulatory framework for healthcare in prisons. Representatives from the National Prison Administration, the Ministry of Justice, the Ministry of Health, the Ministry of Finance, the National Medical Insurance Company, the Ombudsman’s Office and the NGO Promo-LEX participated in these hearings. The committees agreed to submit proposals to the Moldovan government and to the working group established by the Ministry of Justice to propose recommendations for amending the current legislation on prison healthcare. A reform of Moldovan prison medicine has been called for by international organisations and most recently the ECtHR in the case Cosovan v. Moldova (No.13472/18, 22 March 2022, see our previous report).

UKRAINE ■ In Ukraine, two laws adopted on 18 October 2022 bring changes to the release procedure for lifers (Nos. 2690-IX and 2689-IX). As per the new law, prisoners sentenced to a life sentence may have their sentence commuted to a fixed term sentence of 15-20 years’ imprisonment after serving a minimum of 15 years. They will have the possibility to be released on parole after serving three quarters of the commuted sentence. Civil society organisations voiced their concerns during the drafting process through open letters addressed to the Ukrainian President Volodymyr Zelensky (see here and here). They pointed out that, under the new provisions, lifers would be released in the best case scenario after 26 years spent in prison. This prospect of release can hardly be considered realistic, as it is likely that most eligible prisoners will not live long enough given the strict security regime imposed on lifers, the generally poor conditions of detention, and the lack of access to medical care in Ukrainian prisons.
Furthermore, the new law carries the risk of discriminating against certain categories of prisoners. There is no specific provision for the elderly or for lifers who have already spent many years in prison, although their situation is significantly different from that of prisoners who have been sentenced to life relatively recently.
Lastly, the fairness of the process is compromised by the central role given to the prison administration, which is responsible for assessing the “degree of integration” of convicts applying for parole, an important criterion examined by the courts. Another important feature of the adopted laws is that convicts whose life sentence was commuted to a milder sentence will be able to be held with other prisoners and will not be isolated.

GERMANY ■  The Higher Regional Court (Kammergericht) of Berlin, Germany, ruled on 4 October 2022 that the dismissal of a doctor from the Berlin prison board of visitors for criticising government measures in the context of the COVID-19 pandemic was unlawful (5 Ws 31/22 Vollz). The Board, whose members work on a voluntary basis, is responsible for advising on and planning the development of the Berlin prison system. The person concerned had been a member of the Board since 2005. She was dismissed by the prison administration in November 2021 with immediate effect following several critical statements about the government’s handling of the pandemic. The court ruled that this dismissal violated her freedom of expression enshrined in the German constitution. Furthermore, the court stressed that criticism is also an essential task of a board member.

CZECH REPUBLIC ■ In the Czech Republic, the Government proposed amendments to the Execution of Sentences Act to revise the recently introduced rules on debt recovery that entered into force in January 2022 and had a negative impact on prisoners’ savings (see our previous report). Under these rules, the prison administration can withhold the totality of the money sent to prisoners during a calendar month to pay off debts incurred by and unrelated to the offence committed. As a result, as several civil society organisations have pointed out, many prisoners have been left without savings. If adopted, the proposed amendments would allow the prison administration to use the money received by a prisoner to create a financial reserve that would be granted to the prisoner upon release. In addition, prisoners who do not refuse to work will be able to use a fraction of the money received each calendar month as they wish.

AUSTRIA ■ In November 2022, the Austrian government announced amendments to the Criminal Code, the Code of Criminal Procedure and the Prison Act, reforming the preventive detention of mentally ill persons who have committed an offence and for whom a psychiatric report concludes that they are likely to commit further offences because of their mental disorder. Preventive detention can also be ordered against reoffenders deemed dangerous and persons having committed terrorist offences.

Mentally ill persons serve their preventive detention in specific institutions – in practice this means in specific wards of prison facilities. Persons detained under this regime can only be released only once they are no longer considered dangerous – making their preventive detention potentially indefinite. The number of persons held in preventive detention has been growing, reaching 1,443 in 2022, up from 495 in 2001 and 823 in 2010 (EBRV 1789 Blg 27 GP 3 – this figure includes both convicted offenders and offenders detained pending trial, as well as offenders found to be irresponsible on account of mental disorder, and those who are not irresponsible). The amendments were proposed following two ECtHR judgments (Lorenz v. Austria, No. 11537/11, 20 July 2017 and Kuttner v. Austria, No. 7997/08, 16 July 2015), and in reaction to harsh criticisms at national level directed against preventive detention.

Among other changes, the government proposed to specify the conditions under which preventive detention can be ordered. The offense committed must be punishable by more than three years’ imprisonment and there must be reason to believe that the person will commit further offences with serious consequences because of their mental disorder. If the further offenses are of violent or sexual nature, it is sufficient that the offence committed is punishable by more than one year of imprisonment to impose preventive detention.
Juveniles may only be held under the preventive detention regime if the offence committed is punishable by a prison sentence of 10 years’ imprisonment or more. In addition, the maximum duration of preventive detention in a preventive detention institution for a crime committed as a juvenile is set at 15 years.
The amendments also extend the possibility to impose preventive detention on people who have committed a terrorist offence and who are classified as dangerous. They can be placed in detention centres for dangerous reoffenders for up to 10 years.

The amendments have been criticised by various experts as well as oppositional political parties who pointed out that they do not set a time limit to preventive detention, that the criteria for imposing preventive detention will not contribute to reducing the number of persons detained under this regime, that the improvement of the treatment provided to detainees is not a the centre of the proposed amendments, and that keeping people who have committed terrorist offences in preventive detention will not contribute to the prevention of such offences.

GREECE ■ Law 4985/2022 amending the Penitentiary Code was voted into force by the Greek Parliament on 27 October 2022. The new law attempts to introduce a number of changes to the outdated Penitentiary Code (enacted in 1999) in the aftermath of the damning remarks of various CoE bodies – most notably the CPT.
The reforms include the introduction of a new remedy for general detention conditions, and modifies key provisions concerning prison leave, including educational leave, visit and communication rights, semi-liberty, and the transfer of prisoners.
Despite the declared aim of the law to: “(a) improve detention conditions; (b) further safeguard the rights of prisoners; (c) ensure equality in living conditions and prohibit any type of discriminatory treatment of prisoners; and (d) support social reintegration mechanisms”, the new law has drawn severe criticism from the civil society which believed it has failed to meet these goals and, in many cases, further restricted the rights of prisoners.
In particular, the Hellenic League for Human Rights (HLHR), a Greek NGO that monitors the execution of the Nisiotis group of cases, pointed out that the law fails to espouse the long-term, strategic approach fostered by the CPT in its recommendations to Greece. Also, while noting that the new remedy to complain about detention conditions might serve the purpose of appearances by limiting the number of cases pending before the ECtHR, it cannot be considered effective in conditions of widespread severe overcrowding. The HLHR also argued that the new conditions for the transfer of prisoners into minimum security prisons run contrary to the principle of equality among prisoners and relate the assessment of threat posed by individual prisoners to the type of crime they have committed in an abstract manner, without sound scientific basis for this assessment. Furthermore, the fact that a prisoner whose visit and communication rights have been limited can only access a one-time complaint procedure before a judge (without right to appeal) violates their right to a fair trial. The conditions for granting leave to prisoners have also become stricter, basing it on the type of offence instead of the length of the sentence incurred and the years served. The right to educational leave is now related to formal requirements, such as time served (up to two years), and new reasons for refusing to grant or revoking the right to leave have been introduced. Finally, the right to semi-liberty is so restricted that it is essentially rendered null, and community service, which was already suspended, is now entirely removed from the penitentiary code.

POLAND ■ In Poland, public consultations were held in November 2022 on specific items of the prison reform programme (called “Modern prisons”). The first consultation concerns a regulation obliging prisoners to pay a flat monthly fee of PLN 20 (approximately EUR 4) for each additional electronic device or electrical equipment in their cell. In the draft amendments, it is assumed that even if the equipment (e.g., a TV or a reading lamp) belongs to only one inmate, it is used by extension by the other inmates who must also pay. In response to the consultation, the Ombudsman argued that this assumption is incorrect and pointed out that due to the rules of prison subculture, some prisoners living in a cell with extra equipment are not allowed by their fellow prisoners to use it. To make a prisoner in this situation pay the monthly fee would be contrary to the principles of social coexistence and social justice.
The second consultation concerns a regulation to charge convicted and remand prisoners for their correspondence. Under this regulation, the treasury will pay for official correspondence and the prison administration will be obliged to provide the prisoner with paper and envelopes. This does not apply to personal correspondence: in this case, it is up to the prison governor to decide whether paper and envelopes should be provided to the prisoner. In the Ombudsman’s view, this provision disproportionately restricts prisoners’ rights to private correspondence.

RUSSIA ■ On 4 November 2022 the Russian authorities amended the Mobilisation Act (Federal Law “On Mobilisation Preparations and Mobilisation in the Russian Federation of 26 February 1997 No. 31-FZ) allowing the mobilisation of persons who had been convicted of serious crimes (which was previously prohibited). The amendments prohibit only the mobilisation of persons convicted of certain offences (sexual offences against minors, certain terrorist and extremist offences, organisation or membership of an illegal armed group, hijacking, illegal handling, embezzlement, extortion of nuclear materials or radioactive substances, state treason, spying, attack against public official, seizure of state power, and mutiny). This reform can be seen as providing a legal basis for future conscriptions of inmates – or as retroactively legalising the deployment of convicts in Ukraine. Approximately 40,000 prisoners have been recruited by the private military company Wagner since the beginning of the conflict (see our report).

HUNGARY ■ The Regional Court of Szeged, Hungary, rejected a prisoner’s claim for damage due to the violation of his right to private and family life as a result of high phone call prices (EUR 0.2-0.25 per minute) which prevented him from calling his family. He also complained of repeated night-time checks, carried out every 30 minutes between 22:00 and 5:00, during which prison guards briefly turned on the light, thereby depriving him of sleep (Pf.II.20.137/2022/4). The court found no violation of the applicant’s rights in both instances. As regards the phone calls, the court considered that the applicant had other means of communication with his family (emails, video-calls). Regarding the night checks, the court considered that the applicant failed to prove that they were carried out in a manner that was unnecessary for prison safety and security.

PORTUGAL ■  The Portuguese Constitutional Court declared that the legal provision according to which a decision rejecting a request for a period of adaptation to parole is not subject to appeal is unconstitutional (case no. 764/2022). The court found this provision (Article 235 (1) of the Code for the Execution of Penalties and Measures of Deprivation of Liberty) infringes on the right to effective legal protection enshrined in Article 20 of the Portuguese constitution.
Also in Portugal, the Court of Appeal of Évora ruled that a prisoner whose prison sentence execution was suspended and is to be revoked must be heard (case no. 1016/14.5PAPTM.E1). The omission of such a hearing, which is a prerequisite for any decision, constitutes a nullity of the proceedings. The suspension of the prison sentence enforcement may be revoked if, during the suspension, the convicted persons: a) flagrantly or repeatedly violate the duties or rules of conduct imposed or the individual plan for social reintegration; or b) commit a crime for which they will be convicted and reveals that the objectives which were the basis for the suspension could not be achieved by it.

HUNGARY ■ The Hungarian Supreme Court (Kúria) recalled that released prisoners can file a compensation claim directly with a court, without going through the prison administration first (Pfv.III.20.421/2022/4). The applicant had filed a compensation claim before a lower instance court following his release. He complained he had not been granted one hour of daily outdoor exercise for more than 60 days. The lower instance court declared the claim inadmissible, arguing that the complaint should have been directed to the prison administration when the applicant was detained. The Kúria annulled the lower instance court’s decision, on the grounds that released prisoners do not have to address their complaints to the prison administration.

CZECH REPUBLIC ■ The Constitutional Court of the Czech Republic annulled the decision of a District Court which had rejected a prisoner’s application for conditional release solely because he was a repeat offender, without taking into consideration his efforts to reintegrate into society while in prison (No. III ÚS 2878/22). The court recalled that the rejection of an application for conditional release based on a prisoner’s criminal record violates the principle of double jeopardy. The Constitutional Court had already issued similar judgments, revealing a widespread practice among the ordinary courts.

FRANCE ■ In France, an ordonnance dated 19 October 2022, complementing a law adopted in 2021, brings prisoners’ social rights closer to those of the general population. The ordonnance specifies a previous reform regarding the social rights of prisoners hired through the newly created “prison employment contract” (see our previous report) and results in an increased application of the French Labour Code and Social Security Code in detention. Whereas prisoners working in detention used to contribute only to health and maternity insurance, they now contribute to other insurance branches (old-age, work accidents), and they are entitled to the associated benefits as soon as they are assigned to a job – except for daily allowances from health insurance (in the event of medically certified physical incapacity to continue or resume work).
Prisoners’ entitlement to unemployment insurance is also improved, while they are still excluded from unemployment insurance benefits while in detention (with the exception of prisoners undergoing sentence adjustment, provided that it enables the effective search for an employment), the conditions under which they can reactivate their rights upon release are extended. Under the new framework, prisoners will lose their right to unemployment benefits after a period corresponding to the duration of the entitlement with an added six years, up from three years previously. This measure should increase the number of former prisoners whose unemployment insurance rights will be reactivated upon release from detention.
Finally, the labour inspectorate now has the same prerogatives in prison as it does outside. The provisions on combating discrimination and moral and sexual harassment at work are now applicable in prison and occupational medicine has been introduced in the medical units in detention.

RUSSIA ■ The Spanish Supreme Court upheld a sentence of one and three years’ imprisonment respectively for two prison officers found guilty of torturing a remand prisoner suspected of murdering his eight-month-old child (ECLI: ES: TS: 2022:3976). The defendants argued that the punches and slaps they inflicted on the prisoner were not severe enough to qualify as torture. The Supreme Court, relying on its previous case law, rejected this claim and qualified them as acts of torture (art. 174 Criminal Code) as opposed to an attack on moral integrity committed with abuse of power by a public official (art. 175 Criminal Code). Both provisions punish serious and less serious acts of aggression. The difference between the two offences lies in the teleological element present in the crime of torture, which is committed “in order to obtain a confession or information from persons or to punish them for [any acts] they have committed or are suspected to have committed, or for any reason based on a certain type of discrimination”. This element is fulfilled in this case as the aggression was committed by officials in the exercise of their duty, who took advantage of their position to access the prisoner’s cell with the objective of punishing him for what he allegedly did.

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.