SEPTEMBER-DECEMBER 2021

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 France, Germany, Poland, Ukraine and Russia.

CONTENTS >> SENTENCE ADJUSTMENTS, LIFE SENTENCES, TORTURE AND ILL-TREATMENT, SECURITY, HEALTH, DETENTION CONDITIONS, PRIVATE AND FAMILY LIFE, CIVIL SOCIETY, NGOS AND HUMAN RIGHTS DEFENDERS, PROCEDURAL RIGHTS, DELAYED RELEASE, TRANSFER

RUSSIA ■ On 28 October 2021, the Plenary of the Supreme Court of Russia extended its Resolution No. 8 (21 April 2009) by ruling on the possibility to replace part of a custodial sentence with community service (Articles 53.1 and 80 of the Criminal Code of Russia). The Supreme Court ruled that domestic courts should not grant eligible detainees this possibility if they do not qualify for community service (e.g. if they have disabilities or have reached the age of retirement, etc.).

GERMANY ■ Amendments to the Schleswig-Holstein Prison Act (Landesstrafvollzugsgesetz Schleswig-Holstein – LStVollzG SH) and the Act on Executing Preventive Detention in Schleswig-Holstein (Gesetz über den Vollzug der Sicherungsverwahrung in Schleswig-Holstein – SVVollzG SH) on 23 September 2021 restrict the right to accompanied prison leave. Section 54.1 of the Schleswig-Holstein Prison Act makes accompanied prison leave discretionary if it is necessary to achieve the objective of the sentence. The German Bar Association sees this as reducing prisoners’ rights.

FRANCE ■ The French Parliament passed a law on 22 December 2021 ending the automatic sentence reduction system. Previously, sentences were automatically reduced except in cases of bad conduct or low effort to reintegrate. The new system grants the liberty and custody judge the power to reduce the sentence by a maximum of 6 months every year based on prisoners’ conduct and effort to reintegrate. Additional reductions can be granted in cases of exceptionally good behaviour. Judges and lawyers’ associations opposed the reform, arguing that the previous system clearly identified the conditions under which sentences would be reduced, and make planning the timing of a prisoner’s release easier. The new system makes prisoners’ release date and effort required to reduce sentences unpredictable.
This law also introduces a new work contract for prisoners that enables them to contribute to the social security system. The French section of International Prison Watch (OIP-SF) has long advocated for better regulation of working conditions in prison. Though this section of the new law is a welcome step forward, OIP-SF notes that prisoners continue to lack stability in their working situation. The prison administration and employer continue to hold the power to define working time and terminate the contract.

UKRAINE ■ On 20 September 2021, the Constitutional Court of Ukraine declared the absence of an effective mechanism to release people sentenced for life unconstitutional and ordered Parliament to bring the legislation in-line with this decision without delay. The European Court of Human Rights (ECtHR) first found in 2019 that the absence of a release mechanism for lifers constituted a breach of European Convention of Human Rights (ECHR) Article 3. The Committee for the Prevention of Torture (CPT) has twice recommended that Ukraine put such a mechanism in place (in 2016 and 2018). According to EPLN and the Kharkiv Human Right Protection Group, Ukraine Parliament Draft Law no. 4049, which proposes an exemption mechanism, does not meet the requirements established by ECtHR case law.

UKRAINE ■ On 28 October 2021, the Ukrainian government approved a strategy to combat torture in the criminal justice system and approved a plan to implement it by the end of 2023. Torture is a structural problem in Ukrainian law enforcement. The ECtHR has long identified it and the issue is under the control of the Committee of Ministers of the Council of Europe. Ukraine adopted a similar strategy in 2015, but has not yielded significant results. The new strategy does not address previous shortcomings, nor does it include any measures to bring Article 127 of the Criminal Code of Ukraine, which provides for liability for torture, in line with international standards.

At the end of October 2021, the penitentiary system’s medical service in Ukraine approved a procedure for doctors to record bodily injuries, in line with the Istanbul Protocol. This procedure has not yet been published. Undoubtedly, this is a positive step, but, as human rights activists point out, this problem should not be expected to disappear with the adoption of the abovementioned order. The CPT also expressed the need to address the problem of improperly recording injuries in the penitentiary system with detailed recommendations.

GERMANY ■ A detainee in preventive detention applied for permission to possess a game console. The prison administration rejected this request on the grounds of abstract danger to prison security. The Koblenz Higher Regional Court overturned the prison administration’s decision on 13 December 2021. While it acknowledged that such a danger could arise from equipment with specific technical components, the Court stated that when examining the prisoner’s application, the prison administration must find a balance between the interests of detainees in preventive detention and those of the prison administration to ensure security within the detention facility. Thus, the prison administration must find milder means to counter this danger when applying the “principle of distance” (OLG Koblenz 2. Strafsenat (2 Ws 563/21 Vollz)). According to German Federal Constitutional Court (FCC) case law, preventive detention is not punishment. The “principle of distance” requires a fundamental difference between the execution of preventive detention and custodial sentences (2 BvR 2333/08). With this ruling, the FCC followed up on the ECtHR judgment M. v. Germany (no.19359/04, 17 December 2009).

Also in Germany, the Law to Amend Berlin Prison Acts (2 September 2021, in force as of 27 September 2021) revises the preconditions for physical restraint. The law provides that “appropriate regular medical supervision must be ensured in each case”. According to a ruling of the Federal Constitutional Court (FCC), therapeutic or nursing staff must constantly and personally monitor physically restrained prisoners. The National Agency for the Prevention of Torture deemed the prior guarantee insufficient. The Prison Archive’s (Strafvollzugsarchiv) criticisms of two other federal states’ legislative procedures also applies to this law: these federal states have used the FCC’s decision to introduce the use of physical restraint into their laws. While, on the one hand, this grants some procedural standards for prisoners, on the other hand, it means ignoring CPT’s recommendation to refrain from physical restraint in non-medical settings.

GERMANY ■ The German Federal Constitutional Court (FCC) ruled on a case in which a prisoner asked for permission to obtain medication to end his life (3 November 2021). The complainant requested to be allowed to purchase the required medication at his own expense to end his life. The prison rejected his application. The specialised courts acknowledged that the prison had made a decision of conscience. The FCC criticised these courts for violating their duty to clarify the facts. In particular, the FCC questioned whether prison staff, as public officials bound by fundamental rights, were entitled to invoke a decision of conscience with respect to the complainant.

RUSSIA ■ On 30 December 2021, Article 24 of the Russian Pre-Trial Detention Act (Federal Law on the Detention of Suspects and Persons Accused of Criminal Offences (no. 103-FZ of 15 July 1995), Федеральный закон “О содержании под стражей подозреваемых и обвиняемых в совершении преступлений”) was supplemented with Paragraph 7, which says that the procedure for ordering and/or extending temporary confinement to psychiatric institutions (for in-patient treatment) shall be governed by the Russian Federation’s Code of Criminal Procedure (CCP). The regime of their confinement in psychiatric institutions shall be regulated by legislation concerning psychiatric treatment. These amendments provide general but important guidance on the procedural framework applicable in cases of compulsory psychiatric hospitalisation (confinement) of a detainee, and automatically extend the procedural guarantees set forth in the CCP (adversarial public proceedings, the right to defence, etc.) to all similar cases.

FRANCE ■ An interim order by the Administrative Tribunal of Toulouse, France, ordered the French authorities to significantly improve the detention conditions in the Toulouse-Seysses prison, found to be in breach of ECHR Articles 2, 3 and 8. The judge ordered the state to implement eleven urgent measures regarding sanitary conditions, outdoor activities and violence among detainees and between prison guards and detainees. The order was issued following a complaint by the French section of the International Prison Watch (OIP-SF), the lawyers’ association of Toulouse and the French organisation of lawyers (SAF) following the publication of an alarming report that described the unsanitary and overcrowded prison by the French National Preventive Mechanism (CGLPL).

Also in France, the government issued a decree defining a judicial remedy for prisoners to complain about their detention conditions. It was introduced by an amendment to the code of criminal procedure adopted in April 2021 and in force as of 1 October 2021. According to the decree, prisoners should put forward relevant facts proving the inadequate conditions of detention. After having heard the prison director, the judge can order them to take necessary measures to improve detention conditions within a month. If detention conditions have not improved, a judge can order that the prisoner be transferred to another prison or consider early release. This remedy was established following the ECtHR judgement J.M.B and Others v. France (no.9671/15 and others, 30 January 2020) condemning France for a breach of ECHR Article 13. NGOs and lawyers’ organisations have advocated for years in favour of such a remedy.
In addition, a French Supreme Court (Cour de Cassation) issued a judgment (20 October 2021) specifying the conditions under which this new remedy can be used. The court declared that the new remedy applies only to complaints filed after 1 October 2021. Complaints filed earlier should still be examined by a judge following the procedure defined by the court in a July 2020 judgment before an effective domestic remedy was available.

RUSSIA ■  Amendments introduced to Article 99 § 5 of the Code on Executing Penalties (Уголовно-исполнительный кодекс Российской Федерации, 21 December 2021) extended the category of convicted detainees eligible for free food, clothing, personal hygiene products, and public utilities (water, lighting, heating) to orphans in school, vocational educational, college, and university. Others eligible for such guarantees include people detained in youth (educational) colonies and convicted detainees suffering from grade I and II disabilities (under the Russian classification of disabilities).

RUSSIA ■ Amendments on 24 September 2021 to paragraph 151 of the Russian Internal Rules of Remand Prisons (Ministry of Justice Order No. 189 of 14 October 2005) provide that female suspects and accused women with minor children, as well as single dads with minor children, are allowed to make “priority” phone calls to their children within 24 hours of their arrival to a remand prison, upon permission of a court or investigating body.

RUSSIA ■ The Constitutional Court of Russia rejected a complaint against prison guards’ practice of interrupting detainee interviews if they discuss matters other than the conditions of detention (such as allegations of ill-treatment during arrest). The complaint was lodged by members of the Public Monitoring Commission (PMC), an advisory body composed of civil society representatives who are authorised to visit detention facilities, deal with detainees’ complaints and issue recommendations to public authorities. The court found their complaints inadmissible ratione personae as in its view, the situations complained about had not affected the rights of PMC members. Lawyers and human rights defenders criticised these decisions (nos. 2167-O and 2168-O of 26 October 2021). It is still possible for other similar constitutional cases to be filed on behalf of detainees.

Also in Russia, In November 2021, the Prosecutor’s Office initiated proceedings to dissolve the two oldest civil society organisations in Eastern Europe, International Memorial and Memorial Human Rights Centre.

UKRAINE ■ In Ukraine, procedural rules for penitentiary institutions and remand centres were amended to provide legal assistance to detainees (8 October 2021). The law establishes a clear list of people who can provide legal aid, including individual applicants’ representatives before the ECtHR; times during which legal aid is provided, including on weekends; a procedure to provide legal aid in medical institutions; a procedure to provide legal assistance if a detainee refuses it; the possibility of using penitentiary institutions’ computer equipment while providing legal assistance; and bans audio recordings of these meetings.

GERMANY ■ The Berlin Court of Appeal in Germany ruled that if parties’ statements contradict each other when establishing the facts, the court must investigate the facts of the case further. This especially applies if the prisoner has named concrete evidence (KG Berlin 2. Strafsenat (2 Ws 121/20 Vollz)). In this case, the applicant stated that while on prison leave, he had to wear an ankle shackle and prison clothing and was accompanied by two uniformed prison guards. This made him feel “on display” in public. However, the prison stated that he had only worn a waist belt and handcuffs. The Court for Executing Prison Sentences rejected the prisoner’s application, referring only to the order and the prison staff’s account. Witnesses named by the prisoner were not heard. The Court of Appeal found that the court has a duty to determine the facts relevant to the decision, for example, by hearing named witnesses. According to sections 109 et seq. of the Prison Act, the Court for Executing Prison Sentences is obliged to investigate the facts relevant to the decision independently of the parties’ submissions to the proceedings (FCC of 17 March 2021 – 2 BvR 194/20 -, para. 51 with further references).

POLAND ■ In October 2021, the Minister of Justice of Poland proposed draft amendments of the Executive Penal Code for the “improvement of penitentiary units’ security conditions, protection of society against the perpetrators of the most serious crimes, improvement of the conditions for officers and employees of the Prison Service to perform their duties, and improvement of procedures related to executing penalties and pre-trial detention”. One of the most important suggested changes is to allow the dismissal of prisoners’ complaints, motions, and requests as “manifestly unfounded” and introduce a seven-day limit to submit a complaint from time the complainant became aware of the event they are complaining about.
The Polish Minister of Justice’s draft also sets a minimum frequency of telephone contact between prisoners and their defence counsel or family members – at least once a week. Currently, this contacts is unlimited, so the proposal may limit this contact. Moreover, the draft extends the minimum period of serving a life sentence in a closed prison to 20 years. In such institutions, inmates stay in closed cells, usually with many people, for 23 hours a day. Currently after 15 years, prisoners can apply to be transferred to a semi-open prison, where their cells remain open during the day. The draft also includes a possibility to serve up to the last 1.5 years of a sentence under electronic supervision (now, this is limited to six months). To comply with ECtHR judgments (Milka v. Poland (no. 14322/12, 15 September 2015) and Dejnek v. Poland (no. 9635/13, 1 June 2017)), the Polish minister’s proposed amendments limit personal inspections to cases in which it is essential to ensure security and order and prevent the commission of crimes. Opposite-sex personal inspections are to be limited to cases of imminent danger to life or health. The draft also introduces judicial control over Prison Service officers’ activities during personal inspections. The inspected person could submit a complaint to the penitentiary court to verify its legitimacy, legality and correctness. If the inspection is found to be groundless, illegal or incorrect, the penitentiary court will notify the prosecutor and the competent Prison Service district director.
The Polish Ombudsman and NGOs have repeatedly called for Polish penitentiary law reform. It is also necessary to implement numerous EtCHR judgments against Poland. However, the Minister of Justice’s proposal is controversial in the human rights community. The Ombudsman called the drafted provisions that limit the filing of complaints incompatible with the Polish Constitution and ECHR Article 3. NGOs, including the Helsinki Foundation for Human Rights, noted that the provisions would make it possible for the penitentiary administration to ignore examining inconvenient complaints. The proposed limitation of prisoners’ contact with their defence counsel and family members also violates of the detainees’ right to a defence and respect for private and family life.

RUSSIA ■ The Russian Supreme Court confirmed an applicant’s right to damages after a belated release from a correctional colony (Civil Chamber, 26 October 2021 No. 3-KG21-5-K3).

RUSSIA ■ The Russian Supreme Court found unlawful the prison authorities’ failure to transfer a convicted detainee to a colony settlement from a remand prison within a reasonable time following his conviction (Administrative Chamber, 22 September 2021, No. 53-KAD21-11-K8).

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.