1. Procedure
1. The motion for a resolution
on “The fate of critically ill prisoners
in Turkish prisons”, tabled by Mr Nazmi Gür and other members of
the Assembly, was referred for report to the Committee on Legal
Affairs and Human Rights on 3 October 2014.
2. At its meeting on 30 October 2014, the committee appointed
me rapporteur on this topic. It subsequently held an exchange of
views with the outgoing President of the European Committee on the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT), Mr Lətif Hüseynov, at its meeting in Paris on 18 March 2015.
It had an opportunity, on this occasion, to obtain some general
information relating to the treatment and possibility of release
of critically ill persons in detention in Council of Europe member
States.
3. I was authorised to carry out fact-finding visits to Montenegro,
Romania and Turkey at the committee’s meeting in Strasbourg on 21
April 2015. On the same occasion, the committee decided, on the
basis of the overview of the situation provided by Mr Hüseynov and
upon my suggestion, to change the title of the report to “The fate
of critically ill detainees in Europe”. The committee found it appropriate
to expand the scope of the report in order to examine the situation
in all Council of Europe member States. The committee also decided to
expand the scope of the report in order to examine the situation
of not only prisoners serving a sentence after having been convicted
of a crime by a court of law, but also other “detainees” such as
those held in pretrial detention, immigration detention, or any
other form of detention that is not a result of a criminal conviction.
Last but not least, I also obtained the committee’s authorisation
to send out a questionnaire via the European Centre for Parliamentary
Research and Documentation (ECPRD) to ask national delegations for
information concerning national law and practice on the treatment
or release of critically ill persons in detention.
4. On 20 May 2015, at its meeting in Yerevan (Armenia), the committee
considered a background note.
2. The issues at stake
5. There have been reports from
a number of Council of Europe member States about neglect and lack
of treatment for persons in detention who are seriously ill – either
physically or mentally, or both. Many prisons and other places of
deprivation of liberty are ill equipped to look after detainees
with certain diseases or illnesses or to provide end-of-life care,
which is likely to result in a deterioration of their condition
and, in some instances, may even be fatal. Likewise, reports suggest
a (sometimes routine) inappropriate use of measures of restraint
(handcuffs or the like) on elderly, infirm and dying detainees,
including those transferred to a hospital to receive treatment.
It moreover appears
that, quite often, detainees have no possibility to effectively challenge
inadequate treatment, for example because they are not entitled
to legal aid for such purposes.
6. I will examine these and related issues more closely. However,
there is an even more fundamental question underlying my rapporteur
mandate, which relates to the appropriateness of keeping a critically
ill or dying person in detention at all. The competent national
authorities allegedly too often deny compassionate release on grounds
of advanced age or illness. Reportedly, the risk of re-offending
is routinely cited as a reason for denying a request for compassionate
release, even though logic suggests that a terminally ill, physically weak
elderly person is unlikely to (still) pose a security risk if released.
7. My report addresses three of the four categories of detainees
– including both convicted prisoners and persons in pretrial detention
– which the
CPT considers to be unsuited for (continued) detention,
namely:
- detainees suffering from a severe
illness requiring treatment outside of the place of detention;
- terminally ill detainees (i.e. detainees who are the subject
of a short-term fatal prognosis);
- detainees of advanced age.
8. I consider that the fourth category referred to by the CPT,
persons in detention with (severe) disabilities, is outside the
remit of my report. Undoubtedly, however, the situation of detainees
with disabilities deserves further investigation. During my fact-finding
visits, I learnt about a number of worrisome cases of prisoners
who were unable to look after themselves due to (mostly physical)
disabilities. A recent judgment handed down by the European Court
of Human Rights (“the Court”) against France
confirms my concerns
about violations of the rights of prisoners with disabilities. In
light of this, I encourage the Parliamentary Assembly (and perhaps its
Committee on Equality and Non-Discrimination) to prepare a separate
report on that issue.
9. The issues surrounding critically ill detainees deserve special
attention because the prison sentence – and thus, the deprivation
of a person’s physical freedom – is in itself meant to be the proportionate
and appropriate punishment for those convicted of a criminal violation
in a court of law; any further deprivation of rights, including
the right to health care, extends beyond the scope of the State’s
mandate to impose punishment. The situation may be even more disturbing
for those held in pretrial detention who have not been convicted
of any crime, and are still denied access to medical attention.
10. My report also focuses specifically on the practices of three
countries: Romania, Montenegro and Turkey, which I identified, on
the basis of CPT reports and other available sources, as potentially
experiencing significant problems in terms of the treatment of critically
ill detainees. In order to obtain further information from member
States which I could not visit, I distributed a questionnaire via
the ECPRD to request information on the laws of each member country
relating to the compassionate release of ill or elderly detainees.
The questionnaire can be found in Annex 1 to the present report.
Of the 47 member States petitioned, 29 returned responses,
with a further
State declining to provide information.
I
am grateful for the co-operation of the relevant countries’ parliamentary
research divisions for helping to build a picture of the Europe-wide
situation of critically ill detainees.
3. Relevant international standards
and related work of the Council of Europe – a brief overview
3.1. Medical care for critically
ill detainees
12. The CPT devoted a section of its
3rd General
Report to health care in prisons.
Moreover,
the
CPT standards (document CPT/Inf/E(2002)1 Rev. 2006) establish the
fundamental principle that all detainees are entitled to the same
level of medical care obtainable by other persons in the community
at large. Lastly, as I mentioned above, the CPT, aside from clarifying
member States’ responsibility to provide adequate health care to
persons detained within their jurisdiction, has also clearly stated
that there are certain categories of prisoners who are unsuited
for (continued) detention. It asserted that:
“Typical examples of this kind of prisoner are those who
are the subject of a short-term fatal prognosis, who are suffering
from a serious disease which cannot be properly treated in prison
conditions, who are severely handicapped or of advanced age. The
continued detention of such persons in a prison environment can
create an intolerable situation. In cases of this type, it lies
with the prison doctor to draw up a report for the responsible authority,
with a view to suitable alternative arrangements being made.”
13. Committee of Ministers
Recommendation
No. R (98) 7 indicates recommendations for the “ethical and organisational
aspects of health care in prisons”, which include access to a doctor
at any time and without undue delay, and professional independence
of doctors who treat detainees.
14. Similarly, the Council of Europe’s manual on
“Prison
health care and medical ethics” stresses the importance of the professional independence
of prison health-care workers, noting that “it is essential that prison
doctors’ clinical decisions are governed only by medical criteria
and that the quality and effectiveness of their work are assessed
by a qualified medical authority”.
15. Also worth mentioning is Assembly
Recommendation 1418 (1999) on protection of the human rights and dignity of the
terminally ill and the dying, which recalled, referring to
Resolution 613 (1976), that “what dying patients most want is to die in peace
and dignity, if possible with the comfort and support of their family
and friends”.
16. The European Court of Human Rights has also clarified that
issues relating to the health rights of persons in detention may
engage Article 3 of the European Convention on Human Rights (
ETS
No. 5, “the Convention”), which enshrines the prohibition
of torture, inhuman or degrading treatment or punishment. Severe
situations in which a detainee dies as a result of inadequate medical
care may also engage the right to life protected in Article 2. The
Court has pronounced itself, on several occasions, on the (alleged
lack of) medical assistance provided to detainees suffering from
illness. The following cases are relevant examples.
17. Since its Grand Chamber judgment in the case of
Kudła
v. Poland,
the
Court has consistently affirmed that a State’s failure to provide
“requisite medical assistance” to a person in detention may violate
Article 3 of the Convention. In particular, it noted in this case
(at paragraph 94) that:
“the
State must ensure that a person is detained in conditions which
are compatible with respect for his human dignity, that the manner
and method of the execution of the measure do not subject him to distress
or hardship of an intensity exceeding the unavoidable level of suffering
inherent in detention and that, given the practical demands of imprisonment,
his health and well-being are adequately secured by, among other
things, providing him with the requisite medical assistance.”
18. In its Article 3 assessment, the Court will take into account,
as it clarified in
Mouisel
v. France, elements such as the
medical condition of the prisoner, the adequacy of the medical assistance
and care provided in detention, and the advisability of maintaining
the detention measure in view of the state of health of the applicant.
This test was further elaborated in the case of
Gelfmann v.
France, where the Court
took into account, among other relevant factors, the dynamics of
the applicant’s health condition, the possibility of conditional
release or parole for a seriously ill detainee if his health deteriorated,
and the applicant’s own attitude.
19. The Court also found violations of Article 3 in various cases
against several States Parties in which detainees were denied access
to critical medical care or were provided with severely inadequate
treatment. These cases include, but are by far not limited to, the
following:
- Testa
v. Croatia, due to inadequate
medical care of the detainee’s Hepatitis C;
- Dirdizov
v. Russia, due to a failure
to provide “comprehensive, effective and transparent medical treatment”
in detention for the applicant’s arthritis and progressive Bechterew’s
disease, despite doctors cautioning that failure to provide adequate
medical assistance would endanger the applicant’s life and would
lead to his becoming disabled;
- Romokhov
v. Russia, on account of the
delays and defects in the applicant's medical treatment while in
detention, which led to his losing his eyesight
- Khudobin
v. Russia and Salakhov
and Islyamova v. Ukraine, on account of the failure
of the respective detention centres to provide adequate medical
treatment to HIV-positive detainees;
- Grori
v. Albania, due to the detention
centre’s denial of proper treatment to a detainee suffering from multiple
sclerosis;
- McGlinchey
and Others v. United Kingdom, due to the failure
of the detention centre to provide adequate medical care to a detainee
experiencing severe withdrawal symptoms, even when her condition
worsened.
20. In severe cases in which the detainee died as a result of
his or her inadequate or inefficient treatment, the Court has also
found a violation of Article 2 (right to life). These cases include:
- Tarariyeva
v. Russia, because
the detainee’s inadequate medical care and his premature transfer from
a civil hospital back to a prison hospital contributed to his death;
- Salakhov
and Islyamova v. Ukraine, due to the inadequate
care and unwarranted delays with respect to a HIV-positive detainee,
who died as a result.
21. Given the urgency of issues concerning the medical needs of
detainees, the Court has also on several occasions ordered interim
measures pursuant to Rule 39 of the
Rules
of Court. In the case of
Tymoshenko
v. Ukraine, the Court ordered
an interim measure under Rule 39 and requested that the government
ensure that the applicant, imprisoned former Ukrainian Prime Minister
Yuliya Tymoshenko, receive adequate medical care for her various
ailments. In
Paladi v.
Moldova,
the
respondent government was ordered not to transfer the applicant,
who suffered from neurological disorders, from the specialised hospital
where he was receiving treatment back to the prison hospital.
3.2. Detainees receiving treatment
outside the place of detention
22. Committee of Ministers
Recommendation
Rec(2006)2 on the European Prison Rules indicates that when a detainee
requires specialised care that is not available at the prison hospital,
he or she should be transferred to a civil hospital to receive such
care. Similarly, the
United
Nations Standard Minimum Rules for the Treatment of Prisoners state that sick prisoners who require special treatment
should be transported to an outside hospital, and that prison directors
should take immediate steps to accommodate the recommendations of
medical staff.
23. The
CPT
standards indicate that “if recourse is had to a civil hospital,
the question of security arrangements will arise. In this respect,
the CPT wishes to stress that detainees sent to hospitals to receive treatment
should not be physically attached to their hospital beds or other
items of furniture for custodial reasons. Other means of meeting
security needs satisfactorily can and should be found.”
24. This is reflected in the Court’s case law. To name but two
examples, the Court found violations of Article 3 of the Convention
on account of (repeated) delays in a detainee’s admission to a (specialised)
hospital in the cases of
Poghossian
v. Georgia and
Andrey
Gorbunov v. Russia.
3.3. Use of restraints on detainees
in medical settings
25. On a related note, the European
Court of Human Rights requires that the use of handcuffs in a medical setting
be justified objectively, in order to be in line with medical ethics
and the person’s dignity. It found violations of Article 3 in a
number of cases, including those listed below, where the national
authorities failed to strike a fair balance between legitimate security
concerns and the rights of detainees:
- Mouisel
v. France (cited above), due to physical restraints on the detainee’s
wrists and ankles while he received chemotherapy;
- Tarariyeva
v. Russia, on account of the
detainee being chained to his hospital bed, even while suffering
from a severe stomach condition from which he eventually died.
26. The Court has also examined the use of handcuffs on detainees
who are being escorted to and from a hospital, finding, for example,
in the above-mentioned
Mouisel case in which the applicant was kept in chains during
transfer, that in light of the applicant’s health and his physical
weakness, the use of handcuffs was disproportionate to the needs
of security.
3.4. Compassionate release for
ill detainees
27. Compassionate release for ill
detainees encompasses two situations. The first is one in which
a detainee seeks temporary release in order to receive medical care
from an outside facility when such care is not or cannot be provided
by the detention centre; the second occurs when a detainee suffers
from a terminal illness and petitions for permanent release in order
to die at home.
28. The Committee of Ministers, in its
Recommendation
No. R (82) 16 on prison leave, recommends first and foremost that
member States “grant prison leave to the greatest extent possible
on medical … and other social grounds”, and that leave be granted
“as soon as and as frequently as possible”. The Committee of Ministers
further indicates that in the event of a refusal, prison services
should explain as completely as possible the reasons for refusal
and provide a mechanism for review of the refusal.
29. In its
Recommendation
Rec(2003)22 on conditional release (parole), the Committee of Ministers
calls on all member States to implement domestic legislation that
allows for some form of conditional release, if they do not have
such legislation already. It also establishes the principle that
any detainee meeting the minimum criteria to be released should
be released, and that it is incumbent upon the relevant authorities
to show why a detainee should
not be
released
.
30. Recommendation
Rec(2003)22 also includes various recommendations relating to procedural safeguards.
Specifically, it states that “decisions on granting, postponing
or revoking conditional release, as well as on imposing or modifying
conditions and measures attached to it, should be taken by authorities established
by law.” It further elaborates that convicted persons applying for
conditional release have the right to be heard and present evidence,
the right to access their files, and the right to receive a decision
in writing that states the underlying reasons for the decision.
32. Ad hoc international tribunals, such as the International
Criminal Tribunal for the former Yugoslavia (ICTY) and the Nuremberg
tribunal, have also engaged in the practice of compassionate release.
In the case of the Nuremberg trial, three convicted war criminals
were released early for poor health.
With respect to the ICTY, Biljana
Plavšić, convicted of genocide and other crimes relating to her
time served in the collective Presidency of Bosnia and Herzegovina,
was released early due to old age and deteriorating health.
3.5. Care of elderly detainees
and the potential for early release
33. My fact-finding exercise for
the present report extended beyond the fate of critically ill prisoners,
to also look at the prospects for release for elderly persons in
detention. A
report from the World Health Organization (WHO)
identifies some
of the key challenges to the incarceration of detainees of advanced
age, and notes that detainees can be considered geriatric as early
as ages 50 to 55. In addition, the report recommends that prison
authorities evaluate and adapt detention centres to the unique needs
of elderly detainees, review the medication lists to ensure that
the medications are appropriate for older detainees, and develop
resources to help provide older detainees with palliative care plans
or hospice services when necessary.
34. Recommendation
No. R (82) 16 of the Committee of Ministers goes further, encouraging
member States to grant prison leave on a variety of grounds, specifically
mentioning “medical, educational, occupational, family
and other social grounds” (emphasis
added). I believe that advanced age can and should be considered
as one of these social grounds.
35. Importantly, the Court does not exclude the possibility that
the prolonged detention of an elderly person may amount to inhuman
or degrading treatment, in violation of Article 3 of the Convention.
It so stated in
Papon v. France, although it held that
the minimum level of severity necessary to engage Article 3 was
not attained in the specific case of the applicant.
Another
case in which the Court referenced advanced age in the context of
a detainee’s complaint under Article 3 is
Farbtuhs
v. Latvia, in
which it found a violation on account of the detainee’s severe disability
and the fact that he was already 84 years old at the time of his
sentencing, due to the fact that the crimes in question had been
committed nearly six decades earlier.
36. On a more general note, I should like to recall that the
CPT’s
3rd General Report, as previously mentioned, identifies terminally ill
detainees, detainees of advanced age and ill detainees requiring
treatment from an outside facility as unfit for continued detention.
3.6. Treatment of other categories
of detainees
37. The Assembly recently adopted
Resolution 2077 (2015) and
Recommendation
2081 (2015) on abuse of pretrial detention in States Parties to
the European Convention on Human Rights, based on a report (
Doc. 13863) prepared by Mr Pedro Agramunt (Spain, EPP/CD). These
texts urge member States to avoid the use of pretrial detention
as much as possible, noting multiple negative effects of pretrial
detention both on the detainee and society as a whole. I find it
worth reiterating that the prohibition of inhuman or degrading treatment (Article
3) applies to all detainees. Pretrial detainees, who are presumed
innocent, are thus also entitled to receive adequate medical treatment,
including from an outside facility if necessary.
38. Similarly, persons in immigration detention in Contracting
Parties are also protected by Article 3. The
CPT
Standards indicate that “immigration detainees should – in the
same way as other categories of persons deprived of their liberty
– ... as from the outset of their detention … have access to a lawyer
and a doctor”. Despite these standards, several cases of inadequate
treatment of persons in immigration detention were brought to my
attention by the International Federation of Action by Christians
for the Abolition of Torture (FIACAT), including the placement of
irregular migrants in need of specialised psychological treatment
in immigration detention in Luxembourg. In Sweden, a Syrian asylum
seeker reportedly died from cancer after five weeks in immigration
detention, isolated and without having had access to medicine other
than pain killers.
4. Laws, practices, and recurring
problems in Council of Europe member States
4.1. Barriers to receiving (outside)
medical care for critically ill detainees
39. With respect to the provision
of medical care to critically ill detainees, I have found that various
member States experience problems relating to the independence of
medical staff, the availability of transport options for detainees
to outside hospitals, and the restraint of detainees when receiving
outside medical care, in apparent non-compliance with the above-cited
European standards.
4.1.1. Lack of independence of
medical staff
40. European standards require
that medical staff in detention centres be professionally independent
in order to make medical diagnoses and administer care, with the
health of the detainee as the foremost consideration. Still, in
many cases, I find that medical professionals within detention centres
are still far too dependent on the prison administration. According
to the replies to my questionnaire, in Austria, terminally ill detainees
are assessed by two independent doctors as well as a “control” examination
by the chief of the medical service; this appears to be a good practice.
By contrast, in Bosnia and Herzegovina, it is only the medical services
of each penal institution that decide on the need for external medical
care.
41. Independent medical professionals enjoy improved patient trust
and have more freedom to diagnose solely on the basis of the condition
of the detainee, as opposed to also having to take into account
the resources and preferences of the detention centre itself. Member
States should strive for greater independence of medical professionals
who work in detention centres. Reports have noted that one way to
improve independence of health-care providers in detention centres
is to shift the responsibility for prison health from prison officials
to the health ministry – an option that some countries (amongst
them France, Luxembourg, Norway, Turkey and the United Kingdom)
have pursued.
Although this is not the only
way to achieve professional independence, I would encourage more
member States to consider making this transition.
4.1.2. Delays in ensuring access
to medical care
42. I also share the concern expressed
by the Council of Europe Commissioner for Human Rights in a number
of reports following visits to various member States – including,
but not limited to,
Azerbaijan (2010),
Belgium (2008) and
France (2008) – which highlight the issue of cancellation or
delay of outside medical appointments, due either to a lack of available
transport from the detention centre to the hospital facility, or
to too restrictive a policy of granting such treatment on the part
of the prison administration.
I also raised this issue during
my fact-finding missions, and I cannot but stress the importance
of ill prisoners and detainees being transferred to outside doctors
or medical facilities without delay. The procedure for requesting
and organising such transfers should be flexible and avoid undue
bureaucracy, while guaranteeing a non-discriminatory approach and
preventing arbitrary decisions to delay or deny a transfer.
4.1.3. Use of restraints on detainees
in medical settings
43. Another persistent problem
I have observed in respect of various member States is the continuous
and unnecessary or disproportionate use of restraints on detainees,
even when the circumstances are such that the possibility of escape
or harm to others is all but impossible. Even in member States in
which a risk assessment is undertaken to determine the appropriate
level of restraint, prison staff sometimes only complete the risk
assessment once, before the initial transfer of the detainee, rather
than continuously reassessing the situation as the condition of
the detainee changes.
45. It is important to note, however, that the United Kingdom
is not the only country that can be criticised for excessive restraint
of its detainees, as evidenced by the judgments of the European
Court of Human Rights mentioned above (at paragraph 25) with respect
to France and Russia. In the same vein, the French “Contrôleur Général
des Lieux de Privation de Liberté” criticised the fact that detainees
were often handcuffed not only during transfer to a hospital, but
also during medical consultations and sometimes even during surgery.
The FIACAT reports that prisoners
in Luxembourg are regularly handcuffed to their beds, even when they
are placed in dedicated secure hospital rooms.
I
suspect and fear that more member States also engage in the practice
of excessively restraining their detainees as they receive medical
assistance.
4.1.4. Deliberate withholding of
medical care
46. One of the most striking problems
is the intentional prevention, by the government or other relevant authorities,
of the provision of necessary medical care. Just recently, in September
2015, Vladimir Kondrulin died of prostate cancer at a tuberculosis
hospital under the Federal Penal Service Department for the Chelyabinsk
Region in Russia. He could have legally qualified for compassionate
release, but his petition was denied; and Mr Kondrulin was not transferred
to a specialised hospital.
Similarly, a
recent CPT
report (document CPT/Inf(2015)27) on the visit of a CPT delegation
to the Caribbean part of the Kingdom of the Netherlands noted that,
“[i]n 2013, a 36-year old woman prisoner died from cardiomyopathy
after having waited for several hours before the doctor came to
see her” (paragraph 171).
47. These cases are all the more concerning when assistance is
denied to alleged political prisoners. Specific examples include
the detention of Leyla and Arif Yunus in Azerbaijan, both of whom
suffer from serious conditions and have continuously been denied
treatment,
and
the case of Yulia Tymoshenko,
who
was denied critical medical treatment until a Rule 39 intervention
by the European Court of Human Rights.
48. Probably the best-known, if not to say notorious, case in
this category is that of Sergei Magnitsky, whose death in pretrial
detention after the denial of essential treatment for pancreatitis
caused an international outcry and led to the adoption of
Resolution 1966 (2014) and
Recommendation
2031 (2014) on refusing impunity for the killers of Sergei Magnitsky,
on the basis of a report (
Doc.
13356 and
addendum) I had prepared on behalf of the Assembly. Despite his
clearly diagnosed condition necessitating surgery, Mr Magnitsky
was transferred to a prison that lacked the requisite facilities.
His case is currently pending before the European Court of Human Rights.
49. Lastly, the case of
Aleksanyan
v. Russia concerned
the treatment of former Executive Vice President of Yukos oil company
and lawyer for Mikhail Khodorkovsky and Platon Lebedev, Vasily Aleksanyan. Notwithstanding
a serious deterioration in the health of Mr Aleksanyan, who suffered
from AIDS and had developed tuberculosis as well as liver cancer
with metastasis in the lymph nodes, he was not transferred to a specialised
clinic to receive antiretroviral treatment and chemotherapy. On
the contrary, his pretrial detention was even extended, in apparent
disregard of two interim measures indicated by the Strasbourg Court,
by means of which the authorities were ordered “to secure immediately,
by appropriate means, the in-patient treatment of the applicant
in a hospital specialised in the treatment of Aids and concomitant
diseases” (paragraph 76 of the judgment). Mr Aleksanyan was only
released on bail (on a bond of the equivalent of 2 million euros)
after the Court found an Article 3 violation on account of the lack
of proper medical assistance in the remand prison and held that
his pretrial detention should be discontinued; he died some two
and a half years later.
50. Needless to say that these (political) cases are only the
tip of the iceberg. More generally, I have to admit that I was struck
by the fact that the recommendations and clear guidance emanating
from the above-referenced, numerous documents adopted by the Committee
of Ministers, the Parliamentary Assembly and the CPT that seek to
set a minimum standard of treatment for detainees often appear to
go unheeded. Worse still, by the time a detainee is able to seek
redress before a domestic court or the European Court of Human Rights, they
have often already been subjected to damage that cannot be undone.
The Assembly must therefore call on all member States to provide
necessary medical treatment to all detainees.
4.1.5. Overcoming the identified
barriers to medical care
51. In light of the foregoing,
I find it of the utmost importance to recall the Committee of Ministers’
Recommendation
Rec(2000)22 on improving the implementation of the European rules
on community sanctions and measures, as well as the Assembly
Resolution 1938 (2013) and
Recommendation
2018 (2013) on promoting alternatives to imprisonment
by
utilising community sanctions and other alternative measures instead
of detention wherever possible. Sending less people to prison not
only relieves the pressure on overburdened prison staff, but also
lessens the risk of a violation of the rights of an ill detainee.
Besides, adopting a more lenient approach to compassionate release
will also contribute to reducing prison overcrowding, which, in
turn, will foster detention conditions conducive to good health.
Before considering the type of medical treatment needed by a detainee,
governments should therefore first consider whether the person should
be detained at all.
52. The case law of the Court makes it very clear that critically
ill detainees must receive adequate medical care and be restrained
no more than necessary. Domestic law should allow for access to
outside hospital assistance whenever an independent medical professional
determines that such access is in the best interest of the detainee’s
health. Domestic law should also ensure, and be implemented in such
a way, that the standard should be no restraint at all, unless a
case-by-case risk assessment demands it. Domestic law should mandate
a constant re-evaluation of a detainee’s medical condition in order
to determine if and when restraints are no longer needed.
53. Finally, governments must never deliberately deny detainees
medical treatment. Such clear, intentional violations of Article
3 are totally unacceptable.
4.2. General care and conditions
for elderly detainees
54. Europe’s prison population
is aging. By way of example, I should like to note that, in my own
country, Switzerland, the number of prisoners above the age of 59
increased by 11% between 1990 and 2012; the number of over 70 year
olds has increased by 425% in the last 20 years.
With this aging
trend come a number of challenges, including, for example, the question
as to how to deal with detainees suffering from certain age-related
diseases. I draw again from an example from Switzerland, where the
oldest prisoner in the country, aged 90 at the time, had seen his
request for interruption of his sentence denied despite the fact
that he suffered from terminal cancer and advanced dementia.
When
it comes to advanced stages of dementia, I consider continued detention
to be entirely unjustified, for the person concerned will most likely
no longer understand the purpose of his or her punishment.
55. More generally, many Council of Europe member States do not
have detention centres equipped to handle the unique needs of an
aging detainee population. In some countries, prisons are located
in old buildings with narrow hallways and staircases, without elevators.
It appears that,
in States in which the prison population is small – and the geriatric
prison population even smaller – there is little incentive for meaningful change.
But
these inmates are entitled to the same rights, and appropriate medical
care under CPT standards and Article 3 of the Convention. Elderly
detainees suffer unnecessarily in conditions that are not well adapted
to their needs. Therefore, member States should modernise their
detention facilities in order to accommodate this population (for
example wider hallways, wheelchair accessibility and accessible
pharmacies and infirmaries).
56. On a positive note, some member States have started to enter
into discussions about ways to improve the quality of life for older
detainees.
In Portugal,
sentences depriving people of their freedom, when applied to those
over 65, “must respect their specific needs and state of health
and autonomy, guaranteeing the help needed for everyday activities
and providing accommodation, conditions, security, activities and
programmes that are especially suitable”. Other States have similar
provisions. Detainees of advanced age in Austria are “sheltered
either in a semi-open regime or in a special medical department
within the prison system”, depending on nursing needs. The Republic
of Moldova allows for convicted men who have reached the age of 65
and convicted women who have reached the age of 60 to request their
placement in institutions for the disabled or elderly; however,
no information was given on the standards of these institutions.
57. End-of-life and palliative care plans are actively used for
detainees in some member States. The existence and appropriate use
of these plans is crucial to the protection of the basic dignity
of aging inmates. In the United Kingdom, the Prisons and Probation
Ombudsman for England and Wales issued a
report that examined the inadequacies and deficiencies of end-of-life
care programmes that were used in the cases of detainees who had
died in recent years. The report offers case studies of successful
and unsuccessful instances and uses of palliative care for dying
detainees, and highlights the importance of an effective palliative care
programme, failing the (preferable) compassionate release of elderly
detainees. End-of-life and palliative care plans allow individuals
to receive high quality end-of-life care. Close co-operation with
specialised palliative care centres as well as hospices is to be
encouraged.
4.3. Standards and processes
for compassionate release
58. In many member States, some
form of compassionate release is available to detainees. Yet, domestic laws
vary: the decision is sometimes made by the Minister of Justice,
or the equivalent government minister, after the detainee receives
a serious or terminal diagnosis and submits a petition for release
(as is the case in Ireland and the United Kingdom, for instance).
In other member States (such as France), the decision is referred
to a normal parole board, or a regular court of law that adjudicates
parole requests. A case raising concerns of a risk of political
bias and a lack of independence from the executive is that of Turkey,
which I will examine more closely below. In Turkey, the decision
to suspend a sentence on grounds of illness or disability is taken
by the prosecutor’s office.
59. The procedures and the criteria for adjudicating an application
for temporary or permanent compassionate release can vary. The vast
majority of States allow for applications from both the prisoner
and the prison authority. The Slovak Republic, however, appears
only to allow applications from the director of the detention facility,
raising questions of independence and individual access to compassionate
release.
60. Most systems appear to apply similarly to both pretrial detainees
and detainees serving a sentence. Both the Czech Republic and Finland,
for example, gave evidence in their questionnaire responses of systems
to postpone imprisonment in the face of medical evidence. However,
in the Slovak Republic, release on compassionate grounds is not
possible for a pretrial detainee. This gives rise to concerns in
light of Mr Agramunt’s above-mentioned
report on the abuse of pretrial detention in member States.
Compassionate release should not be denied to those awaiting trial.
4.3.1. Temporary or permanent release
from (remand) prison
61. Grounds for compassionate release
vary between States. Some provide closed lists of qualifying illnesses
while others take broader assessments. The Ministry of Health, Labour
and Social Affairs of Georgia, for example, has adopted a list of
severe and terminal illnesses that are grounds for release. Greece
similarly states in law the severe illnesses that qualify for release.
Israel, whose parliament has observer status with the Parliamentary
Assembly, requires that the stay in prison endanger the prisoner’s
life substantially and that the medical condition leaves the prisoner
requiring artificial respiration measures, permanent unconsciousness
or advanced dementia requiring continuous supervision 24 hours a
day, or cancer, or the transplant of a vital organ.
62. I am of the view that more individual-focused approaches are
preferable. Poland allows for temporary release for treatment if
the illness threatens the prisoner’s life or if continuing imprisonment
will lead to a deterioration of the prisoner’s health – an assessment
made on a case-by-case basis. Finland, on the other hand, assesses
whether treatment would be particularly difficult in prison, which
attaches more importance to the institutional ability to cope with
the prisoner than to the prisoner’s own situation.
63. The Spanish Constitutional Court has limited compassionate
release on probation to “serious and incurable illness, the progression
of which would be unfavourably affected by remaining in prison,
entailing a deterioration in the patient’s health and thus shortening
his or her life, even where there is no imminent risk of death”.
While Germany’s Code of Criminal Procedure limits compassionate
release to those cases where imprisonment would cause a threat to
the detainee’s life, the Higher Regional Court of Hamburg ruled
in 2006 that the respect of human dignity required release for a
terminally ill detainee who posed only a very limited danger to
society, even though imprisonment itself did not pose a risk to
the prisoner’s life and treatment in the hospital of the penal institution
was possible.
64. In the Netherlands, amnesty is assessed on the grounds of
whether it has become apparent that the implementation or continuance
of imprisonment no longer reasonably serves the intended purpose.
France, likewise, allows for release if the prisoner’s terminal
illness is incompatible with the continuance of detention. This
is arguably the most progressive system in all member States, as
it acknowledges the unnecessary nature of incarcerating the critically
ill, regardless as to whether or not incarceration would be actively
detrimental to their health. I fully endorse this approach.
65. Acknowledging the inherent dignity of the prisoner, even in
cases where further imprisonment may not imminently lead to death,
is commendable. Assessing the effect of continued incarceration
on the prisoner as an individual rather than against a “closed list”
of sufficiently serious illnesses better reflects their fundamental rights.
66. Against this backdrop, I am concerned to note that in Croatia
compassionate release is limited to a temporary release of 12 months,
after which the prisoner must continue serving his or her sentence,
in complete disregard of the rights of the individual. Further,
in Montenegro, compassionate release is granted only to prisoners
over 50 suffering from severe illness. I am troubled that no such
compassionate release is open to younger prisoners.
67. Connected to these issues is the assessment of the prisoner’s
threat to public security. Lithuania will take into account the
“gravity of the committed criminal act, the personality of the convicted
person, the nature of the illness [and] also [the] conduct of the
convicted person”. When considering conditional release on health grounds,
Israel will consider “the prisoner’s family conditions and the victim
and his family conditions”; and while Portugal allows for a wide
range of reasons for compassionate leave, this is allowed only when
there are no serious considerations relating to prevention or social
peace and order.
68. I do not contest that questions of public security are always
to be considered, but member States always ought to guarantee the
human dignity of the prisoner, in particular when they are terminally
ill or facing short-term fatal prognoses. There is an undeniable
potential for abuse, especially in the case of political prisoners,
if compassionate release can be denied on – often vague – grounds
of public order. I would add to this that there are less restrictive
alternatives to continued detention to prevent reoffending, such
as (telephonic) reporting requirements and even electronic monitoring.
69. A limited number of States retain systems of pardon.
Regrettably,
no information was provided by member States as to how many pardons
are granted on such grounds. It would be useful if States were to
keep statistics on this, and make them publicly available. While
Cyprus
de jure only allows
for a Presidential pardon to obtain compassionate release, it acknowledges
that, in practice, there is a legal process for requesting suspension
or commutation of the prisoner’s sentence before the Attorney General
and that this process is appealable. I am more concerned that, in
Hungary, Presidential pardon constitutes the only way to obtain
early release from prison; there is no codified, legal mechanism
for compassionate release. As no reasons are given for the pardons,
there is no way of assessing even the existence of compassionate
release. I believe that compassionate release of critically ill
prisoners must not be left to political discretion.
70. Several countries provided numbers both for petitions for
early release received and those granted or rejected:
- in 2012, France received 296
applications for suspension of sentence. 253 were accepted; 33 were rejected. Figures
were not provided for the number of prisoners permanently released
on compassionate grounds;
- in 2013, Lithuania received 14 applications for compassionate
release, four of which were granted. In 2014, it received 17 applications
and granted 9;
- the Slovak Republic produces detailed statistics, a good
practice I would invite other countries to follow. In 2014, 63 applications
were made for discontinuation or remission of the execution of a
prison sentence. Six were related to a short-term fatal prognosis,
and all of these applications were approved. 34 applications were
made relating to severe illness requiring treatment outside the
place of detention, 32% of which were approved. A further 19 prisoners
were released on grounds of terminal illness. Four prisoners died
pending the examination of their application. The average duration
of the decision-making process is six days;
- Estonia also provided statistics over a five-year period.
Of a prisoner population of around 3 200, around five critically
ill detainees were released each year. This number has in fact grown,
from only two releases in 2010 to four in the first six months of
2015 alone. In every year except 2011, all applications were approved.
Many of the prisoners released still had long periods of their sentence
remaining, and the ages of those released ranged from 26 to 70.
In the same time period, there were two detainees receiving treatment
outside the place of detention.
71. There is no statistical information on the number of prisoners
who died in prison after the rejection of their application for
release. What is clear, however, is that sometimes States face problems
in actually releasing people deemed unfit to remain in detention,
for example when detainees engage in hunger strikes to the point
of developing complications, including the Wernicke-Korsakoff syndrome.
Still, determinations by medical
officials that a person is not fit to remain in detention are not
always heeded by the decision-making authorities, and critically
ill detainees sometimes remain in detention for months after a determination
that they are medically unfit to remain detained.
72. In this connection, Georgia states that the duration of its
decision-making process is 14 days, but this has been recognised
by the State as too long and is now subject to review. Cyprus described
the average duration of its decision-making process as “the soonest
possible”, and asserted that no prisoner eligible for compassionate
release had died pending the examination of the application. In
the Slovak Republic, many decisions took as little as one or two
days, but two cases took as long as 15 days.
73. Additionally, many processes for release require some form
of medical evidence from one of more doctors, though the doctors
or hospitals supplying this medical evidence are not always independent.
For example, in Turkey, the Forensic Medicine Institute (
Adli Tıp Kurumu
Başkanlığı) makes medical recommendations as to which detainees
are suffering from illnesses that give them eligibility for compassionate release.
Not only is the Forensic Medicine Institute an organisation subject
to bureaucratic delays, but it is also closely linked to the Ministry
of Justice and therefore is not an independent medical authority,
as recommended by international standards and the Council of Europe.
74. Another cause for concern is the lack, in some member States,
of an opportunity for judicial review of a decision not to release
a detainee. Romania and Croatia both allow for appeals within three
days of the original decision,
and
Albania provides for a possibility to file an appeal within five
days; but no (judicial) review is foreseen in Spain, for example.
Appeals in Lithuania are conducted through the ordinary Lithuanian
courts procedure. Lithuania has, however, also had over 20 violations
of Article 6 found against it by the European Court of Human Rights
on grounds of unreasonable delay of proceedings. States should therefore
ensure that compassionate release applications and appeals are heard
as swiftly as possible.
75. I fear that the absence of an appeal may cause the deciding
authority to “err on the side of caution”, by turning down the request,
since the decision to release a detainee is final and binding. The
possibility for judicial review of a decision not to release an
ill or elderly detainee is crucial and should be provided by all
member States.
4.3.2. Release of elderly detainees
76. With respect to elderly detainees,
no Council of Europe member State currently has established an upper
age limit for detention. Nor do any member States specifically have
early release legislation based solely on the advanced age of a
detainee, although age does appear to be among the factors considered
in applications for compassionate release,
as confirmed by the
replies to the questionnaire:
- Romania
allows for parole for convicts from the age of 60 as long as they
are serving their sentence in an open or semi-open regime and the
court is convinced the convicted person can be rehabilitated;
- Spain allows for probation for prisoners over the age
of 70;
- Georgia, which allows for release of men over 70 and women
over 65 if half of their sentence has been served, released 43 prisoners
on grounds of old age between 28 December 2012 and 6 July 2015;
- one man, aged 74, was released in Cyprus on grounds of
advanced age;
- those over 70 can be released in Greece provided they
have served two fifths of their penalty and subject to certain conditions.
Furthermore, any day a person over 65 spends in prison counts as
two days of their sentence – a sensible approach that deserves to
be imitated.
77. Nevertheless, the number of elderly detainees continues to
grow, in part because of convictions for crimes committed decades
past. For example, the recent conviction of a former SS guard, who
was sentenced to four years in prison at age 94, appears to have
encouraged prosecutors to continue bringing cases regardless of
the potential defendant’s age.
Although the 94-year-old
may not serve his sentence, it being subject to a forthcoming decision
from medical officials and the prosecutor, the sentencing judge acknowledged
that he would probably not outlive his sentence anyway.
4.3.3. Assessment and recommendations
78. Only 12 States provided any
form of statistical information on the treatment of critically ill
detainees,
with the Slovak
Republic alone able to provide all of the requested information.
A crucial first step would therefore be a requirement upon member
States to keep such statistics in a regulated and uniform manner.
In order to assess policy in this area, the numbers of successful
and failed applications, the number of deaths during the application
process, and the comparison of these figures over time and between
member States are needed.
79. Tied to this recommendation is a need for greater terminological
clarity when discussing cases of critically ill detainees. It is
clear from the wide variety of responses that Europe currently lacks
a unified assessment and treatment of its critically ill prisoners.
Much information was provided on wider parole systems which, while
sometimes relevant, often did not consider the unique position of
critically ill prisoners. These prisoners face specific human rights
challenges which require treatment separate from normal parole considerations.
Member States’ policies must be clear as to whether they allow for
permanent release or only permanent treatment within health-care
institutions, inside or outside the prison system. States often interchangeably
use the phrases “interruption”, “suspension”, “temporary release”,
and “termination of the sentence”. In any event, however, what is
of paramount importance is that treatment and release not be subject to
arbitrary limitations.
80. Regarding pretrial, immigration, asylum and other kinds of
detention outside of the standard prison system, human rights must
apply equally to all detained persons. Member States must not only
ensure that their systems of compassionate leave cover all detainees
within their jurisdiction, but also ensure proper collation of data
on such detainees in order to thoroughly assess their treatment.
81. Notwithstanding that the lack of statistics makes it difficult
to draw general conclusions, I find that many laws and practices
regarding temporary or permanent release are too restrictive and
that applications for release take far too long to decide.
82. Compassionate release processes that require testimony or
reports from doctors must ensure that those doctors are independent
of the prison system. Under no circumstances should they be government
officials or employees of a government institution. Only independent
or private doctors should be allowed to make recommendations as
to the medical condition of a detainee with respect to the potential
for compassionate release.
83. Whenever a detainee’s condition is deemed incompatible with
continued detention, he or she should immediately be granted a temporary
release from detention and be allowed to receive medical treatment
at an outside facility. For detainees with terminal conditions,
compassionate release should always be available. Advanced age should
remain part of the criteria when deciding an application for compassionate
release.
84. Lastly, there is also a need for clarification of the appeals
process in member States. Appeals by terminally ill detainees must
be given priority and due attention. The deaths of prisoners awaiting
the outcome of their applications is unacceptable. Applications
for compassionate release should always be adjudicated by a court
of law and the decision to grant or deny compassionate release should
never rest in the hands of one government official. All decisions
should be subject to judicial review.
5. Summaries of fact-finding
visits
85. With the committee’s authorisation,
I visited three countries – Montenegro, Romania and Turkey – with a
view to exploring in more detail the situation of critically ill
and elderly detainees. As mentioned above, the selection of countries
was partly predetermined by the focus of the
motion at the origin of my rapporteur mandate (in the case
of Turkey), and partly made on the basis of information contained
in CPT reports hinting at the prevalence of certain problems or
shortcomings in relation to the matters at stake (in the cases of Montenegro
and Romania). I should like to reiterate, however, that problems
are not exclusive to these countries, as the replies to the questionnaire
show. I should also like to take this opportunity to thank all three national
delegations and their respective secretariats for the excellent
co-operation in the planning and realisation of my fact-finding
missions and for their hospitality.
5.1. Romania
86. On 25 May 2015, I undertook
a fact-finding visit to Romania, where I held meetings with the
Head of the National Administration of Penitentiaries and representatives
of the Ministry of Justice, the Office of the People’s Advocate
and non-governmental organisations (NGOs). I also met with members
of the Committee for the Investigation of Abuses, Corrupt Practices,
and for Petitions and of the Committee for Human Rights, Cults,
and National Minorities Issues of the Chamber of Deputies of the
Parliament of Romania.
87. The right to medical assistance, treatment and health care
for persons deprived of their liberty is set out in Article 71 of
Law No. 254/2013 on the enforcement of sentences and of measures
involving deprivation of liberty ordered by the judicial bodies
during criminal proceedings, which was designed to bring the legislation into
compliance with the standards set out in the
European
Prison Rules and the United Nations
Standard Minimum
Rules for the Treatment of Prisoners. Details are regulated in the Common Ministry of Health/Ministry of
Justice Order No. 429/2012 on granting medical assistance to persons
deprived of liberty placed in the custody of the National Administration
of Penitentiaries.
88. Nonetheless, both civil society representatives and MPs I
met in Bucharest pointed to local and regional disparities and prevailing
shortcomings in the implementation of the right to health care.
There continues to be a shortage of medical staff in the penitentiaries.
Of particular concern is the lack of adequate psychological treatment:
there are apparently only three psychiatric wards in Romania, and
co-operation between prisons and civil hospitals needs to be reinforced.
89. The inadequacy of mental health care appears to be a broader
problem, as reflected in the types of complaints filed with the
People’s Advocate (Ombudsman). In its 2008 judgment in the case
of
Petrea
v. Romania, the European Court
of Human Rights held that the lack of medical treatment for the
applicant’s mental disorder, together with inadequate conditions
of his detention, amounted to a violation of Article 3 of the Convention.
The CPT continues to denounce the poor material conditions of detention,
especially as regards overcrowding.
Based on my visit, I consider
that there is political will to improve the conditions of detention, including
health care. But this matter must be given priority, in line with
the recommendations of the CPT.
90. Civil society organisations point to the reluctance of prison
managers to agree to the transfer of inmates to civilian hospitals
better equipped to provide specialised treatment. This seems to
be corroborated by statistics, which show that, in 2014, 97% (2013:
95%) of all hospital admissions of detainees were admissions to
prison hospitals. It is unlikely that there was no greater need
for treatment outside the prison system, especially since one of
my official interlocutors told me that prison doctors were overburdened,
and that “sometimes it is impossible to provide the medical services
that the prisoners really need access to”.
91. My NGO interlocutors in Bucharest further noted that medical
professionals were reluctant to work in prison hospitals. At the
same time, if a prisoner requests to be examined by a particular
physician from outside the prison system, he or she must pay a fee.
The Romanian authorities ought to create incentives for well-trained
medical staff to work in prison hospitals, including by creating
better working conditions (inter alia as regards
working hours and equipment) and employment benefits (such as adequate
pay and the guarantee of long-term employment).
92. Another worrisome issue concerns the quality and quantity
of food provided to persons deprived of their liberty in Romania.
I was shocked to learn that the average daily spending on nutrition
per detainee and per day is less than one euro. Such a low daily
allowance is entirely insufficient, as officials in Bucharest admitted –
especially in respect of persons with special dietary requirements
due to illness.
The authorities must ensure without
delay the allocation of sufficient resources to guarantee a healthy
food supply. In the medium term, as I have pointed out in Bucharest,
it might be advisable for Romania to introduce a system where detainees
can grow their own food. Not only would this save the penitentiary
services a considerable amount of money; it would also foster resocialisation.
93. In 2009, the European Court of Human Rights held that there
had been a violation of Article 2 (right to life) of the Convention
in respect of the Romanian authorities’ obligation to protect the
life of Mr Traian Gagiu by administering necessary medical treatment.
Although Mr Gagiu had been suffering from a number of serious diseases,
he had been placed in a cell until the day before he died, instead
of receiving the treatment prescribed by surgeons and specialists.
94. In 2014, 122 deaths in prisons were recorded (the average
prison population during this period being 31 847
), 87% of which were due to medical
causes – mainly cardiovascular diseases, neoplasia (cancer), digestive
diseases and respiratory diseases. The officials I met in Bucharest
agreed with me that nobody should die in prison.
95. This underscores the importance of creating opportunities
for the (temporary or definitive) release of persons from detention.
Aside from the Constitution enshrining, in Article 100(1), the possibility
for a presidential pardon (based on a decree signed by both the
Head of State and the Head of Government), Romanian law (Articles
590-594 of the Penal Procedure Code) allows for an interruption
of a prison sentence where the convicted person is unable to be
treated within the National Administration of Penitentiaries’ health network.
This possibility depends on the competent court not considering
the prisoner to pose a threat to society. In deciding on petitions
for interruption of a prisoner’s sentence, the court will take into
account the seriousness of the crime committed.
96. It is commendable that the National Administration of Penitentiaries
was able to provide statistics on releases on grounds of interruption
of serving a prison sentence. Unfortunately, however, no information
was given on the ratio of requests granted and rejected. But some
conclusions may still be drawn. Strikingly, the statistics show
that, while the number of medico-legal examinations of prisoners
performed increased from 256 in 2010 to 357 in 2014, the number
of proposals of medico-legal commissions
to grant
an interruption of sentence decreased continuously and sharply during
the same period – from 59 to only three. While these statistics
relate exclusively to illnesses in the final stage (e.g. cancer)
and “very serious illnesses” (such as chronic kidney failure of
a person on dialysis or illnesses that require open heart surgery),
and other categories of persons are entitled to submit a petition
for suspension of their sentence, this trend is worrying and cannot be
explained (solely) by improvements in the treatment possibilities
within Romania’s penitentiary system. This trend is mirrored in
the statistics on requests actually granted. Between February 2009
and 31 April 2015, 727 releases on grounds of interruption of a
sentence took place, with a declining trend. A total of 51 people
died during the period of the interruption of their sentence, and
21 were released or pardoned. Moreover, most of these releases were
due to pregnancy or childcare. In the first quarter of 2015, only
four people had their sentence interrupted for medical reasons.
97. In conclusion, I recognise that there are some good intentions
on the part of the government representatives and parliamentarians
whom I met in Bucharest to fully respect the dignity and rights
of persons in detention. But efforts to address the shortcomings
in the provision of timely and high quality medical care within
the country’s prisons must be redoubled – including by combating
overcrowding, increasing the number of medical staff in prisons,
further strengthening co-operation between prisons and public hospitals,
and ensuring that detainees suffering from mental illness be transferred
to specialised hospitals. Aside from this, a more lenient approach
to granting interruption of sentences for medical reasons should
be adopted.
5.2. Montenegro
98. On 26 May 2015, I undertook
a fact-finding visit to Montenegro. I engaged in a number of official
visits which included meetings with the following: the Director
of the Institute for the Execution of Criminal Sanctions, the Director
General of the Directorate for the Execution of Criminal Sanctions
in the Ministry of Justice, and the Ombudsman. I also met with representatives
from various NGOs and with the Montenegrin delegation to the Parliamentary
Assembly.
99. With an overall prison population of around 1 500, there are,
according to figures provided by the Institute for the Execution
of Criminal Sanctions, around 80 to 90 convicted prisoners who are
considered “seriously ill”. About 70 prisoners were known to have
psychological problems. At the time of my visit, two pretrial detainees
were receiving treatment in hospital, which was burdensome for the
authorities, for they needed to ensure adequate security measures.
Courts should always have due regard to a person’s health when deciding
whether or not to remand them in custody. In cases of illness or
disease, the widest possible use should be made of alternatives
to pretrial detention. Similarly, I encourage Montenegro to continue
its important efforts to reinforce its probation service and to
increase the use of alternative sanctions for minor offences.
100. I was also informed that, between July 2012 and May 2015,
four prisoners had died; one in prison and three in medical institutions.
It should be noted that all my interlocutors
in Podgorica agreed that nobody should die in prison. Relatedly,
a representative of the Montenegrin NGO Human Rights Action (
Akcije za ljudska
prava) noted that Montenegrin society at large felt empathy
with seriously ill persons in detention and was generally in favour
of their release to die at home.
101. In Podgorica, I was told that the Montenegrin health service
currently employed 23 medical workers, including three general practitioners
and one dentist. Specialist medical doctors were commissioned to
make regular visits to the prisons, one to three times a week, and
therapies were co-ordinated with public hospitals, especially those
in Podgorica and in Bijelo Polje. NGOs describe the staffing as
still insufficient, despite improvements in recent years. In particular,
they observe that nursing staff continue to be required to work
very long shifts and a significant amount of overtime, as had been
criticised by the CPT.
It
is advisable that Montenegro create incentives for doctors and other
medical staff to work in prison conditions, including through adequate
remuneration and training. I received assurances from the Director
General of the Directorate for the Execution of Criminal Sanctions
within the Ministry of Justice that it was envisaged to create better opportunities
for medical staff working in the country’s prisons to advance their
careers, and to provide for the opportunity for detainees to be
taken not only to public hospitals, but also to private medical
institutions; these appear to be important steps towards ensuring
prompt and adequate health care to persons in detention.
102. A particular concern relates to the provision of psychological
and psychiatric care for detainees with mental illnesses. Only one
psychiatrist visits the prison health-care centres approximately
once a week – a situation denounced by the CPT in its
report on its 2013 visit. More frequent consultations with
psychiatrists must urgently be ensured, and detainees suffering
from severe mental illness should be transferred to an adequately
resourced hospital.
103. Interestingly, officials and civil society representatives
alike noted that the doctor-patient ratio (i.e. the number of doctors
per x patients) in Montenegro
was higher within the State’s penitentiary system than within society
as a whole. Occasionally, a detainee’s medical condition was only
detected during the initial screening upon admission. The Ombudsman’s
office had received a total of 73 complaints from prisoners and
detainees in the past year, 15 of which related to health and medical
care, and mostly to delays in transfers to hospitals. According
to this office, the waiting time to see a physician, and even more
so to get an appointment for surgery, chemotherapy or other specialised
care, was too long both for detainees and ordinary citizens. Montenegro
should therefore strive to further improve its health system in
general.
104. When it comes to compassionate release, Article 53 of the
Law on the Execution of Criminal Sanctions (Law No. 40/2011) allows
for the suspension of a prison sentence of a detainee for the purposes
of obtaining treatment outside the place of detention, subject to
the person’s return to the place of deprivation of liberty, his or
her state of health permitting. The decision on such requests is
taken by the Ministry of Justice, and can be appealed to the administrative
court.
105. In 2014, a total of 20 prison sentences were suspended for
the purpose of receiving treatment at a hospital or even at home.
My official interlocutors explained that
the factors taken into account when assessing prisoners’ eligibility
for interruption of their sentence include the length of the sentence,
the time served, the prisoners’ state of health and medical history,
the treatment needed and treatment possibilities in prison, and
the prisoners’ age. There do not appear to exist any problems in
the practical application of the relevant provisions in Montenegro.
106. Yet, according to the questionnaire response, the expenses
of the expert medical opinion supporting a petition for suspension
of a sentence must be borne by the prisoner. Further, if the prisoner
is treated in a health-care institution not covered by the national
Health Insurance Fund, he or she must not only cover the cost of
medical treatment, but also the costs of transport and security.
I am also concerned at the assumption, expressed by NGO representatives,
that elderly prisoners hospitalised following a heart attack preferred
to return to prison only a few days after their admission to the
hospital, rather than request a suspension of their sentence to
recover fully. The reason for this appears to be that the time they
would spend at the hospital while their sentence was interrupted
would not be counted towards the time spent in prison. These factors
may wrongly incite prisoners not to seek treatment or apply for
a suspension of their sentence.
107. Against this background, I was all the more pleased to learn
that, following my fact-finding visit to Montenegro, the parliament
had adopted, on 26 June 2015, the Law on Enforcement of Sentences
of Imprisonment, Fines and Security Measures. At the initiative
of the members of the Montenegrin Delegation to the Assembly, with
whom I had held a constructive exchange of views, the initial draft
law was amended to introduce a provision (contained in Article 36
of the new law, dealing with Interruption of Sentence Enforcement)
which allows, “exceptionally … and … with previously obtained medical
report and opinion of the competent medical council, for interruption
of sentence enforcement for an indefinite period of time to prisoner[s]
over 50 years of age suffering from a life-threatening acute illness
or deteriorating chronic disease” (unofficial English translation).
5.3. Turkey
108. Finally, I visited Turkey and
held discussions in Ankara on 17 and 18 September 2015. It was precisely the
situation of ill prisoners in Turkey that had prompted Mr Nazmi
Gür and other members of the Assembly to table their motion for
a resolution. And indeed, I should like to point out from the outset
that the situation in Turkey worried me more than that in the other
countries I visited.
109. Prior to my fact-finding mission, I obtained information from
NGO sources, including copies of the medical and legal files of
a number of ill prisoners. In Ankara, I held consultations with, inter alia, representatives of the
Ministries of Justice and Health, the Ombudsman’s Institution, the
National Human Rights Institution, the Public Prosecutor’s Office
and NGOs. Moreover, the President of the Institute of Forensic Medicine
provided a written reply to a number of questions I had sent him.
110. My visit also took me to Sincan F-type prison, a high security
prison outside Ankara, where I had the opportunity to speak with
the prison management as well as with two seriously ill prisoners.
Much to my regret, however, I was not permitted to talk to Messrs
Kaytan and Alkiş in private, nor was I able to see their cells;
the prison administration instead showed me what they referred to
as a “typical cell”. I am therefore not in a position to comment
on the adequacy of MM. Kaytan and Alkiş’s accommodation.
111. Both men suffer from severe health problems, as was evident
from their medical files as well as their respective oral accounts:
they have been imprisoned already for 13 and 22 years, respectively.
Suffice it to note here that, following open heart surgery in 2004,
the Forensic Medicine Institute found that Mr Alkiş should be temporarily
released to recover outside of prison; this recommendation was not
followed by the Public Prosecutor and Mr Alkiş remained in prison.
The cases of MM. Kaytan and Alkiş raise particular concern because,
as individuals serving aggravated life sentences, they are not eligible
for (conditional) release, despite their deteriorating health conditions.
As a result, they both face dying in prison. This appears to be
in clear contradiction to the case law of the European Court of
Human Rights, according to which there must always be a prospect
for release.
But
their cases are only the tip of the iceberg. I received information,
from several interlocutors, about other worrisome cases, but addressing
them in detail would go beyond the scope of this chapter of my report.
112. Moreover, one day before my visit to Sincan prison, I learnt
that Mr Vedad Dağ, who had been diagnosed with traumatic paraplegia,
was allegedly being held there in pretrial detention, handcuffed
to his bed. I requested to see him too, but this was denied on the
grounds that I had not asked to speak to him prior to my visit,
and that Mr Dağ was receiving palliative care at the prison hospital.
The latter was confirmed by my interlocutors from the Ministry of
Health, who noted that his mother was taking care of him in prison.
The public prosecutor asserted that the prosecutor’s office had
recommended Mr Dağ’s release, and that he expected that the court
before which his case was pending would issue a favourable decision
shortly. However, I understand that the court has decided not to
follow this recommendation. Mr Dağ continues to be detained at Sincan
prison hospital, despite a report by Numune Hospital stating that
his condition required a six-month suspension of his stay in detention.
Although
I was unable to see for myself how Mr Dağ was being treated, I am
deeply troubled by his case. I urge the Turkish authorities to take
all necessary steps to ensure that he receives appropriate care,
and to secure his release without further delay.
113. At the time of my visit, the overall prison population in
Turkey stood at 172 247. I received varying figures as regards the
number of prisoners who are severely ill; while the parliamentary
research division provided the figure of 809, the NGO Human Rights
Association spoke of 721 as of May 2015.
114. Within the Turkish penitentiary system, medical care is normally
provided by general practitioners and specialists at the place of
detention. These doctors are appointed to work in the prison by
the Ministry of Health. Five prisons across the country have a prison
hospital. For emergency cases, co-operation is foreseen between
the place of detention and university hospitals.
115. Prior and during my information visit, I was confronted with
allegations of breaches of medical confidentiality, notably due
to the presence of custodial staff during medical examinations.
This problem
is well-documented by the CPT with regard to a number of countries,
including Turkey.
The vague assertions by
officials from the General Directorate of Prisons and Detention
Houses that prisoners’ “privacy rights [were] respected”, while
necessary “security measures [were] taken”, and that doctors were
able to see their patients in private if they so wished, did not
convince me that these shortcomings are being addressed in a satisfactory manner.
I can only repeat the CPT’s position that “[a]ll medical examinations
… must be conducted out of the hearing of law enforcement officials
and, unless the doctor concerned requests otherwise in a particular
case, out of the sight of such officials”.
116. It is also a cause of concern that prisoners and detainees
appear too often, if not routinely, to be handcuffed during medical
examinations at hospitals. This was confirmed by both by my interlocutors
at the National Human Rights Institution and NGO representatives.
Ms Ayse Doğan, a former prisoner and detainee whom I met in Ankara,
told me that she had at times refused treatment, because her hands
would have been handcuffed behind her back, making it impossible
for her to undress and be properly examined. I appreciate that the
Director General of Prisons and Detention Houses agreed that treatment
in handcuffs was against human dignity. Now every effort must be
made to move from words to deeds.
117. Another problem brought to my attention concerns the transfer
of detainees to outside hospital facilities. This task falls within
the remit of the Gendarmerie. I received accounts claiming that
there continue to be instances of ill-treatment at the hands of
gendarmes during transfer to hospitals.
Kurdish political prisoners seem to
be particularly prone to such abuse.
Ms Doğan credibly described
having been left waiting in a Gendarmerie vehicle for hours, without
food or water. I saw one of these vehicles myself, and I can imagine how
exhausting it must be for an ill person to be kept for hours in
such a poorly ventilated confined space. During my meeting with
officials from the Ministry of Health, I was informed that the Ministry
of Justice was planning to set up a new unit which would replace
the Gendarmerie as the entity responsible for the external security
of prisons. This appears to be a welcome step. My position on the
matter is clear: transfers to hospitals must always take place in
conditions respecting the detainees’ dignity, and the Gendarmerie
should not be involved in such transfers. I also base this argument
on credible accounts of delays in taking prisoners to hospital,
due, at times, to a shortage of vehicles, but apparently also to
deliberate obstruction by gendarmes. If gendarmes fail to take detainees
to the hospital on time, the patients miss their appointments, which
then have to be rescheduled. This causes potentially harmful interruptions
or delays in treatment, and unjustifiably extends the suffering
of detainees requiring medical care.
118. The problem of delays seems to also exist in the context of
early release from prison on health grounds. Article 16(2) of the
Law No. 5275 on the Execution of Sentences and Security Measures
provides that the execution of a prison sentence may be suspended
for persons who are “unable to maintain their life in a penal institution
due to a severe illness or disability”.
119. Unfortunately, the statistics I received from the parliamentary
research division, the Institute of Forensic Medicine and the Ministry
of Justice differed. According to the most comprehensive set of
data (provided by the Ministry of Justice), between the entry into
force of the latest amendment to Article 16 of Law No. 5275 on 31 January
2013 and the date of my visit, a total of 5 814 applications for
suspension of sentence had been filed. 1 423 applications were currently
pending, of which 1 068 petitioners were awaiting to be taken to
the hospital to receive a medical report, and 345 were awaiting
the final assessment by the Institute of Forensic Medicine. 691
persons were released (on other grounds) before a decision on their
requests had been taken. Of the 3 700 decisions taken, 512 requests
(or 14%) were granted, and 3 188 (86%) were denied.
120. On a more positive note, I learnt that the prison administration
and Ministry of Justice can initiate the proceeding for suspension
on health grounds ex officio.
I can only encourage them to make wide use of this power. But pursuant
to Article 16(3) of Law No. 5275, the decision on a request for
suspension of a sentence is made by the Office of the Public Prosecutor.
This, in my view, is problematic. Although an appeal may be filed
with the office of the judge in charge of the execution of sentences,
there may be a potential conflict of interest where the prosecutor
who decides on petitions for early release forms part of the same
hierarchy that asked for the imposition of a prison sentence at
the trial stage.
121. The prosecutor’s decision is largely based on a report issued
by the Institute of Forensic Medicine or by the health committee
of a fully equipped hospital designated by the Ministry of Justice
and approved by the Institute of Forensic Medicine. Here again,
there is potential for political bias and a lack of independence
from the executive.
122. First, I am not convinced of the explanations given by my
interlocutors as to the necessity of “monopolising” the forensic
expertise at the Institute of Forensic Medicine in Istanbul.
The latter clearly plays a crucial
role in the decision-making process: a Forensic Expertise Board
evaluates all medical files in light of the questions asked by the
public prosecutor, and comes up with an explicit conclusion as to
the prisoner’s eligibility for suspension of his or her sentence
for the purposes of Article 16 of Law No. 5275. What makes this key
role problematic is that the Institute of Forensic Medicine is an
official organ of the Ministry of Justice. While my interlocutors
stressed that the Institute’s affiliation with the ministry was
purely administrative, the Head of the Institute indicated that
“the President, Vice-Presidents, the head and members of the Forensic
Expertise Boards are appointed by … decree … signed by [the] Justice
Minister, [the] Prime Minister and the President. The appointments
of the Forensic Medicine Specialists and other technical personnel
are done by the Ministry”. This casts serious doubt on the Institute’s
independence.
123. Moreover, the process foreseen by law apparently leads to
significant delays in the processing of requests for temporary release.
Although the Institute of Forensic Medicine states that prisoners’
case files are “handled immediately and the prisoner is accepted
for an examination without appointment”, it transpires from the
case files that I have been able to examine that months may pass
between the filing of a petition and the decision. When a prisoner
needs to be examined in person at the Institute of Forensic Medicine,
he or she will usually be taken to the Metris R-type prison in Istanbul.
There, s/he may wait for weeks or months to be seen, because the
Institute might request that additional medical files be provided.
The resulting exchange of letters between the Institute, the Prosecutor
General and the local hospital that drew up the initial report unnecessarily prolongs
the process.
124. NGO representatives also criticise the legislation as being
predominantly security-oriented, rather than focused on compassionate
considerations. The law provides that prisoners may only be released
for illness or disability if they do not pose a security risk. Importantly,
the relevant provision was amended in June 2014. Article 16 of the
Law No. 5275 used to read as follows:
“the execution of sentences of prisoners who are unable
to maintain their life in a penal institution due to a severe illness
or disability and who do not pose a severe and substantial threat
to public security shall be suspended until they recover.”
125. In its current version, the law stipulates that the sentences
of these prisoners should be suspended unless they pose “a severe and specific [or concrete] threat
to public security” (unofficial English translation; emphases
added). Regrettably, however, whilst this formulation at first glance
seems to be an improvement capable of reducing the risk of arbitrariness,
it appears to have little practical impact on the prosecutors’ decision
making.
126. What struck me most was the poor reasoning in some of the
prosecutors’ decisions, sometimes against favourable reports from
the Institute of Forensic Medicine. Some claims that the person,
if released, would pose a threat to public security were not substantiated
at all. In other cases, reference was made to a presumed risk that
the person, even though not posing a threat him- or herself, could
be used as a “tool for propaganda” if released. I would argue that
such a line of argument makes it de facto impossible
for any prisoner having been convicted on account of affiliation
with the PKK to ever be released on health grounds. Turkey should
abandon this discriminatory criterion and release all prisoners
who are eligible for release on medical grounds, whilst imposing
whatever conditions may be needed to avoid reoffending.
5.4. Conclusions of my fact-finding
missions
127. The magnitude of the challenges
to detainees’ effective enjoyment of their health rights varies
across the three countries I visited. At the same time, as anticipated,
some of my findings from my country visits enable more general lessons
to be learned, as well as recommendations to be addressed to several,
if not all, Council of Europe member States.
128. In all three countries that I visited, further improvements
are needed to ensure compliance with the United Nations
Standard
Minimum Rules for the Treatment of Prisoners, which require that “where hospital facilities are provided
in an institution, their equipment, furnishings and pharmaceutical
supplies shall be proper for the medical care and treatment of sick
prisoners, and there shall be a staff of suitably trained officers”.
I also wish to draw attention to the Council of Europe’s
manual for health-care workers and other prison staff with responsibility
for prisoners’ well-being,
which
contains good practices, highlights important ethical standards, and
proposes responses to ethical dilemmas related to access to a doctor,
equivalence of care, patients’ consent and confidentiality, preventive
health care, and professional independence and competence. Moreover,
I believe that all three countries, and probably most other Council
of Europe member States, would do well to reinforce the co-operation
between prison medical services and outside hospitals. This would
also bring national practice better into line with paragraph 40(1)
of the
European
Prison Rules, which sets out that “[m]edical services in prison shall
be organised in close relation with the general health administration
of the community or nation”.
129. I was pleased to learn that all three countries that I visited,
alongside other Council of Europe member States, provide for a temporary
stay of prison sentences to obtain medical treatment. Where the
time spent in an outside hospital is not counted to the detainee’s
served time, States should seek ways to ensure that the law does
not dissuade persons in detention from seeking the treatment they
need. Delays in access to medical examinations, treatment and hospital
transfers must be avoided.
6. Conclusion
130. Widespread reports of human
rights abuses in detention centres have drawn attention to the problems and
lack of solutions faced by particularly vulnerable factions of society:
critically ill and elderly detainees. Doing nothing will only lead
to continued abuses and some detainees may continue to find themselves
at the mercy of a domestic prison system that does not account for
their medical needs and does not allow any realistic possibility
for early release. It is the duty of the Council of Europe to ensure
that all its member States comply with the most basic of human rights
protections. The Council of Europe must seize this opportunity to draw
attention to the fact that even though the CPT and the Committee
of Ministers have issued various recommendations concerning a detainee’s
access to medical care and early release procedures, these rights are
still not being adequately met in many cases.
131. The detainee population is aging, as is the general population.
Member States must recognise the aging trend of their detainee populations,
and examine and modify current accommodations to make their detention as
comfortable as possible. They should also examine their domestic
laws to ensure that they contain adequate remedies, such as broad
provisions for early release. Better conditions for ill and elderly
detainees are necessary from both a legal and a humanitarian standpoint.
132. No human being should perish in detention, but trends in Europe
show that more people die behind bars now than have in past years.
The
Council of Europe must ask of its member States that laws and policies
be examined in order to make changes that will allow for every human
being to die with dignity, not chained to a bed while in detention.
The Assembly must ask all Council of Europe member States to address
this dire situation urgently and effectively.