5 January 1995
on conditions of detention
in Council of Europe member states
(Rapporteur: Mr FRANCK,
Sweden, Socialist Group)
There has been a clear deterioration in prison conditions in Council of Europe member states in recent years. The main reason given for this deterioration is the overcrowding of prisons.
Increased criminality — especially the increase in violent and drug-related crimes — resulting in an increase in the number of convictions, but also higher penalty scales and heavier prison sentences by the courts, have led to a sharp rise in the prison population.
As a result of overcrowding it becomes more difficult, if not impossible, to pay special attention and give special treatment to specific and vulnerable categories of prisoners such as young offenders, mentally disturbed prisoners and foreigners. It also means that less attention can be given to individual prisoners. As a consequence they may more easily fall back into recidivism.
In conclusion, the report stresses the need to reduce reliance on the use of imprisonment and the length of prison sentences. More use should be made of alternatives to imprisonment including electronic control and intensive supervision, administrative and economic sanctions and measures. Some offences could well be decriminalised.
Finally some Council of Europe instruments and texts should be better implemented or reviewed. Full support should be given to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
I. Draft recommendation
1. There has been a sharp rise in the prison population in recent years in Europe and in North America. This rise can be explained by sociological, economic, legal and other reasons but it is significant and a matter of great concern.
2. It is not only increased criminality — especially the increase in violence and in drug-related crimes — resulting in an increase in the number of convictions, but also the augmentation of penalty scales and longer prison sentences imposed by the courts which have led to this sharp rise in the prison population.
3. As a result, numerous prisons in Europe must nowadays be considered as highly overcrowded. There are appalling situations in some of the post-communist countries but there is also reason to be concerned about the deterioration of the situation in most of the west European prisons.
4. Overcrowding may be listed as one of the major reasons for the present deterioration of prison conditions.
5. As a result of overcrowding it becomes much more difficult, if not impossible, to pay special attention and give special treatment to specific and vulnerable categories of prisoners such as young offenders, mentally disturbed prisoners and foreigners. Overcrowding also means that less attention can be given to individual prisoners and, as a consequence, they may more easily fall back into recidivism.
6. There are cogent reasons for reducing reliance on the use of imprisonment, for instance by consciously applying a policy of extending alternative punishments and reducing sentences.
7. Both the Committee of Ministers in its Recommendation No. R (80) 11 and the Assembly in its recent Recommendation 1245 (1994) dealt with custody or detention pending trial, but both recommendations deal with the question whether and when custody pending trial is to be applied rather than with the question of how it is to be served.
8. The Assembly considers that the "European Prison Rules" of the Council of Europe should fully apply to those detained pending trial.
9. The Assembly pays tribute to the highly valuable work of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and to this committee's very useful experience of conditions of detention.
10. The adequate implementation of the European Prison Rules should be a matter of continuous concern to the Assembly. The Council of Europe should step up its assistance to applicant countries and to new member states in the field of prison reform, as well as stimulate and co-ordinate the work its member states are already doing in this field.
11. Therefore the Assembly recommends that the Committee of Ministers:
i. instruct the European Committee on Crime Problems (CDPC)
a. to review the penal value attached to various offences (with a view to increasing the use of alternative sanctions and reducing the length of imprisonment as much as possible);
b. to make renewed studies of what kind of offences might be decriminalised and replaced by administrative and economic sanctions and measures;
c. to make further studies of alternatives to imprisonment, including, for instance, electronic control and intensive supervision;
d. to make a detailed study of the conditions obtaining during remand in custody;
e. to complete the "European Prison Rules" with a catalogue of the rights of the prisoner;
ii. invite the authorities of member states
a. to implement the Committee of Ministers' Recommendations No. R (92) 17 on consistency in sentencing and No. R (92) 16 on community sanctions and measures;
b. to comply with the guidelines on police custody as laid down in the 2nd general report of the CPT, paragraphs 36 to 43;
iii. invite those member states which have not yet done so to ratify the European Convention on the Transfer of Proceedings in Criminal Matters and the European Convention on the Transfer of Sentenced Persons;
iv. speed up and conclude as soon as possible the work at present being undertaken on a draft protocol to the European Convention on Human Rights concerning the rights of prisoners;
v. invite the Assembly to give its opinion on this draft protocol, once concluded;
vi. reinforce the structures and increase the resources of the European Committee on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT).
II. Explanatory memorandum
by Mr FRANCK1
1. Introduction 4
2. Police custody 6
3. Detention pending trial 8
4. Present-day conditions in European prisons 11
5. The prisoner and the European Convention on Human Rights 12
6. The rights of the prisoner 14
7. The prison staff 16
8. Privatisation 17
9. Conclusions 17
"Show me your prisons and I will tell you
what kind of government you have got."
1.1. The sharp rise of the prison population in recent years in North America and in Europe is noteworthy and a matter of great concern. Thus, for instance, in the United Kingdom — which has a higher proportion of its population in prison than any other Council of Europe member state apart from Hungary — the prison population increased from 41 000 at the beginning of 1993 to 48 000 in March 1994. But the United Kingdom and Hungary still lag far behind the United States which now have close to 1 million prisoners (more than 300 per 100 000 inhabitants) witnessing a threefold increase since 1980 and an annual increase of 8,5%. Russia too comes close to one million prisoners.
1.2. As we know that the annual increase of the prison population in Europe is considerable even the latest statistics collected by the Council of Europe are subject to upward correction. Thus, for instance, the Netherlands, which had a very low figure of 44,2 prisoners for 100 000 inhabitants in 1990 and 48,5 in 1992, expects to have 78 in 1998.
1.3. In Austria and Germany the growth of the prison population has now caught up with the high imprisonment rates of the early 1980s. At that time these countries were among those Council of Europe member states with the highest incarceration rates but they managed to reduce them, within five years, by no less than 32% in Austria and 19% in Germany. Other countries such as Denmark or Sweden were able to keep their prison populations more or less constant by consciously applying a policy of extending alternative punishments and reducing sentences. However, in Sweden, the prison population is now on the increase as well as a result of new and more repressive legislation.
1.4. The main reason for the stability and limited size of the Swedish prison population is that fines and probation have been used extensively for a long time and prison sentences are short (only 14% of the annual intake serve sentences longer than one year; only 2% serve sentences longer than five years). Some years ago — when the prison population began to rise — automatic conditional release was given after half the sentence had been served for all prisoners serving more than two months and up to two years. Reversion to the earlier two-thirds of sentence to be served plus especially a rise in the number of longer sentences has led to a recent increase. Sweden, alas, is considering building more prisons to deal with this increase.
1.5. It is by no means certain to what extent increased criminality can be considered a major reason for increases in prison populations. Certainly serious criminality, notably in connection with grave drug offences, has led to an augmentation of the penalty scales and to longer prison sentences imposed by the courts. The deterrent effect of this is doubtful. In addition, there has been an increase in violent offences, frequently in connection with drug and alcohol abuse, over the last decade which has led to severer penalties. But other reasons, such as mandatory minimum sentences, tighter parole policies and a reduced use of non-custodial sanctions, which all stem from a hardening in public and political attitudes towards crime, also play a part.
1.6. As a consequence of this increase prisons now tend to be increasingly overcrowded. There are hardly anywhere in Europe sufficient cells to cope with the growth of the prison population and frequently cells which were originally built for one are now shared by two, three or more prisoners. In fact, experts seem to agree that an important immediate reason for the present deterioration of prison conditions is overcrowding.
1.7. Overcrowding is itself, however, the result of a variety of other factors operating in the criminal justice systems of European countries, some of which are mentioned above. It is not the purpose of the present report to analyse the contribution made by these factors to the overcrowding problem. Nevertheless, some indications will be given in the conclusions of this report as to how reliance on the use of imprisonment might be reduced. If this can be achieved prison conditions stand a better chance of improvement. Moreover, any measures likely to make possible the avoidance of an expansion of existing prison systems by building more prisons — an extremely costly undertaking — are worthy of consideration especially at a time of general budgetary restrictions.
2. Police custody
2.1. Immediately following their arrest persons deprived of their liberty are likely to spend some time in police custody. A rather high proportion of such people are under the influence of alcohol or drugs and often in a state of stress and besides themselves with anger. On the other hand police stations are not always well-equipped and police officers do not have sufficient experience and training in handling detainees. To this must be added the pressures which interrogations may bring to bear on both detainers and detainees. Allegations of torture, ill-treatment and human rights' violations are therefore much more frequent during the periods spent in police custody than during the periods actually spent in prison where the climate is more stable and the detainees less vulnerable. This is confirmed by reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter called "CPT") and by country-reports of Amnesty International.
2.2. Police custody should therefore be of short duration. The impression is, however, that there are too many people in police cells who should rather be in prison. In the Netherlands persons may be held for fourteen days, but we think this is already very long. We also regret that there is a tendency to keep people in police cells because of the overcrowding in prisons. Minors should preferably not be held in police custody at all but, if they are, they should be kept separated from the others.2
2.3. The CPT is nowadays a body with an unique international experience of conditions of detention. Rather than making our own observations on this matter we would subscribe to what the CPT wrote about police custody in its 2nd General Report,3 paragraphs 36 to 43 quoted below:
"36. The CPT attaches particular importance to three rights for persons detained by the police: the right of the person concerned to have the fact of his detention notified to a third party of his choice (family member, friend, consulate), the right of access to a lawyer, and the right to request a medical examination by a doctor of his choice (in addition to any medical examination carried out by a doctor called by the police authorities). They are, in the CPT's opinion, three fundamental safeguards against the ill-treatment of detained persons which should apply as from the very outset of deprivation of liberty, regardless of how it may be described under the legal system concerned (apprehension, arrest, etc.).
37. Persons taken into police custody should be expressly informed without delay of all their rights, including those referred to in paragraph 36. Further, any possibilities offered to the authorities to delay the exercise of one or other of the latter rights in order to protect the interests of justice should be clearly defined and their application strictly limited in time. As regards more particularly the rights of access to a lawyer and to request a medical examination by a doctor other than one called by the police, systems whereby, exceptionally, lawyers and doctors can be chosen from pre-established lists drawn up in agreement with the relevant professional organisations should remove any need to delay the exercise of these rights.
38. Access to a lawyer for persons in police custody should include the right to contact and to be visited by the lawyer (in both cases under conditions guaranteeing the confidentiality of their discussions) as well as, in principle, the right for the person concerned to have the lawyer present during interrogation.4
As regards the medical examination of persons in police custody, all such examinations should be conducted out of the hearing, and preferably out of the sight, of police officers. Further, the results of every examination as well as relevant statements by the detainee and the doctor's conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer.
39. Turning to the interrogation process, the CPT considers that clear rules or guidelines should exist on the way in which police interviews are to be conducted. They should address inter alia the following matters: the informing of the detainee of the identity (name and/or number) of those present at the interview; the permissible length of an interview; rest periods between interviews and breaks during an interview; places in which interviews may take place; whether the detainee may be required to stand while being questioned; the interviewing of persons who are under the influence of drugs, alcohol, etc. It should also be required that a record be systematically kept of the time at which interviews start and end, of any request made by a detainee during an interview, and of the persons present during each interview.
The CPT would add that the electronic recording of police interviews is another useful safeguard against the ill-treatment of detainees (as well as having significant advantages for the police).
40. The CPT considers that the fundamental safeguards granted to persons in police custody would be reinforced (and the work of police officers quite possibly facilitated) if a single and comprehensive custody record were to exist for each person detained, on which would be recorded all aspects of his custody and action taken regarding them (when deprived of liberty and reasons for that measure; when told of rights; signs of injury, mental illness, etc.; when next of kin/consulate and lawyer contacted and when visited by them; when offered food; when interrogated; when transferred or released, etc.). For various matters (for example, items in the person's possession, the fact of being told of one's rights and of invoking or waiving them), the signature of the detainee should be obtained and, if necessary, the absence of a signature explained. Further, the detainee's lawyer should have access to such a custody record.
41. Further, the existence of an independent mechanism for examining complaints about treatment whilst in police custody is an essential safeguard.
42. Custody by the police is in principle of relatively short duration. Consequently, physical conditions of detention cannot be expected to be as good in police establishments as in other places of detention where persons may be held for lengthy periods. However, certain elementary material requirements should be met.
All police cells should be of a reasonable size for the number of persons they are used to accommodate, and have adequate lighting (that is to say sufficient to read by, sleeping periods excluded) and ventilation; preferably, cells should enjoy natural light. Further, cells should be equipped with a means of rest (for example, a fixed chair or bench), and persons obliged to stay overnight in custody should be provided with a clean mattress and blankets.
Persons in custody should be allowed to comply with the needs of nature when necessary in clean and decent conditions, and be offered adequate washing facilities. They should be given food at appropriate times, including at least one full meal (that is something more substantial than a sandwich) every day.
43. The issue of what is a reasonable size for a police cell (or any other type of detainee/prisoner accommodation) is a difficult question. Many factors have to be taken into account when making such an assessment. However, CPT delegations felt the need for a rough guideline in this area. The following criterion (seen as a desirable level rather than a minimum standard) is currently being used when assessing police cells intended for single occupancy for stays in excess of a few hours: in the order of 7 square metres, 2 metres or more between walls, 2,5 metres between floor and ceiling."
2.4. During the hearing in The Hague,5 Mrs Lissenberg, Professor of Criminology in Amsterdam, mentioned that a citizens' committee with official status had paid surprise visits to all thirty police stations in Amsterdam. She felt this had a tremendous preventive effect and may provide some control on the situation of the arrested persons which — otherwise — may well be lacking.
3. Detention pending trial6
3.1. Detention pending trial is not a matter which concerns just a small number of persons — on the contrary. Although good comparative statistics are hard to come by (inter alia the definition of "unconvicted prisoner" varies from country to country), the number of persons in prison awaiting trial or a definitive judgment after an appeal constitutes a sizeable proportion of the prison population in many member states. Thus the percentage of unconvicted prisoners in the prison population on 1 September 1991 was:7
Sweden Northern Ireland
Bulgaria England & Wales
Whilst these percentages give some indication of the variation in the proportion of remanded prisoners in the various countries, it should also be borne in mind that they say nothing about the reasons for variation. A high percentage, for instance, may be caused by slow sentencing procedures but also by the imposition of short prison sentences on many of those who are convicted. A high proportion of short prison sentences as opposed to a small proportion of such sentences makes for a lesser total prison population. The remand population may appear large by comparison. Psychiatric patients should be in psychiatric wards rather than in prison but at the remand stage they may not yet have revealed themselves as patients rather than criminals.
3.2. In its Recommendation No. R (80) 11 the Committee of Ministers and, in its recent Recommendation 1245 (1994), the Parliamentary Assembly8 dealt with custody or detention pending trial. Both recommendations deal with the question whether and when custody pending trial is to be applied rather than with the question of how it is to be served. The conditions under which people detained pending trial are being held are, indeed, a kind of Cinderella of our criminal justice systems. These conditions, too often, are made subordinate to the requirements of the investigation which may call for isolating the accused as much as possible from the outside world and from other prisoners, keeping him/her available at any time for interrogations and holding him/her at a detention centre which is near the place the investigations are taking place rather than close to his/her residence and family.
3.3. A wide variety of persons are to be found in detention pending trial. Their criminal and prison experience varies from the non-existent to the extremely serious. Many have quite ordinary practical problems to solve as a result of being in custody. Most experience some degree of anxiety about their forthcoming trial. Socially well-adjusted persons are found alongside those with serious personal and social problems. Among the latter, in many countries, are the problems of drug and alcohol dependence, HIV infection and mental disturbance. Many kinds of assistance are needed and should be offered.
3.4. Not surprisingly, the CPT has heard many complaints about the damaging psychological effects of pre-trial regimes — anxiety attacks, nervousness, disturbed sleep, concentration difficulties, loss of appetite and weight, repetitive nightmares, paranoid ideas, etc. The conditions described amount, in certain circumstances, to inhuman and degrading treatment.
3.5. As detention pending trial may well last a considerable time and sometimes take many months, even years, persons in such custody, in principle — especially when held over longer periods of time — should have the same rights as those imprisoned after conviction. Thus the "European Prison Rules" of the Council of Europe9 should fully apply to this kind of detainee. In fact, Part V of the European Prison Rules deals with special categories of prisoners, including those detained pending trial. The first rule in this section, Rule 90, requires that prison administrations be guided by the provisions of the rules as a whole to the extent that they can be applied for the benefit of special categories of prisoners. Rule 91 requires that untried prisoners "shall be afforded the benefits that may derive from Rule 90 and treated without restrictions other than those necessary for the penal procedure and the security of the institution".
3.6. Some of the poor conditions observed arise as a result of, or are exacerbated by, prison overcrowding. Thus, for example, at one French prison with a capacity of 337 the CPT found 591 remanded prisoners and 172 sentenced prisoners. At another prison with a capacity of 1 534 there were 1 134 remanded prisoners and 1 020 sentenced prisoners. This degree of overcrowding has inevitable negative consequences on almost every aspect of prison life — the preparation and serving of food, washing and bathing facilities, changes of underwear, opportunities for exercise, etc. In the Netherlands overcrowding has been prevented simply by sending home a large number of the remanded prisoners. Thus 2 489 persons were released because of lack of cells in the first six months of 1994.
3.7. The use of restrictions raises important questions about the applicability of the principle of proportionality and about securing a just balance between the requirements of the investigation and the avoidance of damaging effects on the individual. As long as he is not convicted the detained person should be presumed to be innocent. It seems necessary to assert and re-assert that the imposition of restrictions should be an exceptional measure, limited in scope to what is necessary in the individual case, susceptible of independent decision and review by the courts and with prompt medical and psychiatric assessment of its effects where this is requested or otherwise seems necessary. Yet even court control may also become a matter of invariable routine and cease to exert an independent function of assessment.
3.8. The scope of this report is such that we cannot make here and now a detailed study of the rights of people held in detention pending trial, indicating where they should or could be different from those of convicted prisoners. We feel, however, that the conditions obtaining during remand in custody should be critically examined and recommend that this be done under the responsibility of the European Committee on Crime Problems (CDPC).
4. Present-day conditions in European prisons
4.1. In this report we consider the growth of the number of prisoners practically all over Europe as a fact without trying to give more specific reasons for this growth than we did already in Chapter 1. Overcrowding and — in some cases — extreme overcrowding are a result of the growth of the prison population. Nowhere has the construction of new prisons or the enlargement of existing ones been able to cope with this increase and as a result the prisons, as a rule, are overcrowded. There are appalling situations in some of the post-communist countries but we are also very much concerned about the deterioration of the situation in a number of western European countries. Even in the Netherlands — which has long been considered as a model in respect of its prisons — one now thinks of putting two persons in a cell and we know that in the United Kingdom cells which were built for one person are now commonly shared by three prisoners. British prison governors, at their annual conference, in March 1994, expressed the fear that the mounting jail population would lead to such overcrowding that there would be another round of prison riots like that at Strangeways in 1990. A refusal of prisoners of their small, ill-ventilated and trebled-up cells may easily trigger off that kind of protest movement.
4.2. Many of the prisons, especially in Belgium, France, Italy, Spain, the United Kingdom and in the new Council of Europe member states are very old, their accommodation and sanitary facilities inadequate.
4.3. There is also a change in the prison population. There is some reason to think, for example, that the number of mentally disturbed prisoners in the prison population has increased over recent years. There are more violent and aggressive criminals than there used to be in the past and there is frequently a problem of drug abuse. The increase in the percentage of foreign prisoners is also considerable. They constitute a special category of prisoners and there may be special problems as their contacts with the prison staff and the other prisoners may be very difficult and their contacts with their relatives at home even more severed than is the case with nationals. Foreigners therefore need a special kind of attention and treatment but there are, of course, other categories of prisoners who need a special treatment. Women prisoners and juvenile delinquents need, of course, to be kept apart but there are also some categories of prisoners who may be in need of protection against the others, such as those convicted of sexual crimes who are considered by the other prisoners as being at the bottom of the "pecking order". There are prisoners who are dangerous to their fellow prisoners and others who are dangerous for the prison staff, as they are violent and may use violence and take hostages in order to escape. There are the difficult prisoners with psychological or other problems and their treatment may be different from the treatment given to the other prisoners.
4.4. The special conditions obtaining in the former communist countries of which some have already become member states and others desire to do so, need our special attention. They may be given some time to improve the situation but the fundamental human rights of the prisoners require that this should not take too long. Among the conditions prevailing one may list the absence of adequate legislative provisions defining the conditions of imprisonment and therewith the rights of the prisoners, the abysmal physical conditions which are difficult to remedy given the financial limitations obtaining, problems concerning staff recruitment, selection and training and general organisational difficulties, for instance that the prison service sometimes is part of the Ministry of the Interior and not of the Ministry of Justice. Sometimes the prison service is part of a military police force which may be again to the detriment of adequate human right safeguards. The aim should be, as everywhere within the circle of Council of Europe member states, the implementation of the European Prison Rules. The Assembly's rapporteurs may well make this a condition for membership to the Council of Europe and be followed-up in accordance with the Assembly's Order No. 488 (1993).10
5. The prisoner and the European Convention on Human Rights
5.1. The adequate protection of his fundamental rights and freedoms is, of course, of great importance to any citizen. Yet, in the case of the prisoner, more vulnerable than others, such respect may take particular dimensions. The case-law of the Convention has had an important impact on four areas of the rights of prisoners. The following paragraphs are a summary of a written contribution submitted by Professor Edward Fitzgerald at a seminar on human rights in prison, held in Strasbourg from 7 to 9 July 1993.11
5.2. First, the Convention does not guarantee any general right to be considered for a release on parole.12 Yet the Commission and Court of Human Rights have come to recognise that certain types of sentence — particularly those ordering therapeutic or preventive detention on the basis of some characteristics in the offender such as mental disorder, special dangerousness or recidivist tendencies — may call for a periodic review. Article 5 of the Convention (no arbitrary detention) and Article 6 (fair legal procedures) may apply in such cases. From the jurisprudence of the Commission and Court it appears that parole prisoners would only be entitled to a revocation hearing when the prisoner who has enjoyed conditional liberty is recalled to prison for a substantial further period of detention, and that this applies even in a system where parole is considered as a privilege rather than a right.
In the cases of Kotalla v. the Netherlands and Myra Hindley v. the United Kingdom it was stated that even a prisoner sentenced to life imprisonment had no right to a periodic review of the justification of his continued detention by an independent court. It was stated that these prisoners had had their due process rights under Articles 5 and 6 at the time of their trial and sentence. On the other hand in the case of mental illness, recidivism, or inherited dangerousness detained persons might be entitled to a periodic review of the merits of their detention by an independent court empowered to order their release if they were no longer mentally disturbed or no longer a danger to the community. 5.3. The second area concerns disciplinary hearings and measures. Normally they would not attract the "due process" safeguards under the Convention but some cases may be so serious and the sanctions so severe that the Convention case-law may consider them as a "criminal charge" and Article 6 of the Convention may apply which would include the right to an oral hearing before an independent and impartial tribunal, the right to call witnesses and the right to be represented by a lawyer. This was confirmed in the case of Campbell v. the United Kingdom where the applicant had been sentenced to a total of 570 days loss of remission because of offences of mutiny and gross personal violence. From the Convention's case-law it appears that the Article 6 paragraph 1 safeguards would be attracted for severe sanctions such as penalties of more than six months' loss of remission, a substantial period of extra custody, or a very long period of solitary confinement.
5.4. The third area concerns the retention of certain fundamental rights of the prisoner. After the Golder, Silver and Campbell cases against the United Kingdom it is now established jurisprudence that, under the Convention, prison authorities do not have any general authority to open and read prisoners' correspondence (and certainly not their correspondence with their lawyers) and still less to stop particular letters on the grounds that they find their contents objectionable.
5.5. Although the Commission asserted the right of prisoners to marry (Article 12 of the Convention) it did not accept that prisoners have the right to sexual relations with their spouses or to found a family (Article 8). The Commission of Human Rights found that the refusal of the prison authorities to provide facilities for conjugal visits in the case of X., Y. and Z. v. Switzerland could be justified on the basis that it was "necessary to prevent crime and disorder".
5.6. The fourth area concerns Article 3 of the Convention (prohibition of torture and inhuman or degrading treatment or punishment). This prohibition is absolute and has been conservatively interpreted by the Commission and Court. In the inter-state case of Ireland v. the United Kingdom it was stated that certain interrogation measures of detainees in Northern Ireland constituted inhuman and degrading treatment. Moreover, in an extradition case it was considered that the treatment of prisoners on "death row" in Virginia (as opposed to the death penalty itself) constituted inhuman and degrading treatment because of the "death row phenomenon" of poor conditions and lengthy waits of some six to eight years pending execution.
5.7. Other situations that gave or may give rise to breaches of Article 3 are the following:
—th e inappropriate placing of a sane offender in an institution for the mentally disturbed or, vice versa, to hold a mentally disturbed offender inappropriately in normal locations;—
—th e forcible injection of mentally abnormal prisoners with drugs;—
—pr ison conditions that fall below a certain minimum standard (overcrowding in insanitary cells);—
—th e inappropriate detention of juveniles in institutions for adult offenders;—
—ex cessively disproportionate sentences, such as the case of Weeks v. the United Kingdom where a sentence of life imprisonment was imposed on a 17 year-old offender convicted of robbery;—
—ex cessive and psychologically damaging periods of solitary confinement.5.
5.8. Notwithstanding this already very impressive case-law which may be of great significance to any prisoner, it was felt advisable to reinforce the international protection of persons deprived of their liberty, notably in relation to prison conditions. Therefore work started a few years ago on a draft protocol to the European Convention on Human Rights to draw up concrete provisions inspired, inter alia, by Article 10 of the United Nations Covenant on Civil and Political Rights and by the European Prison Rules. The text of the emerging protocol is not yet public but may provide a number of very tangible safeguards to prisoners. It might include the right for any person deprived of his liberty to be informed promptly, in a language he understands, of the reasons for the deprivation of his liberty, of his rights and how to avail himself of these rights. Such a person should have the right to promptly inform a lawyer, a member of his family, or another person of his choice of the fact and place of his deprivation of liberty. And, if he is abroad, he should have the right to promptly inform the diplomatic or consular representatives of his own country.
5.9. The protocol may well include safeguards in respect of disciplinary proceedings and sanctions, comparable to those of Articles 6 and 7 of the Convention for criminal offences and procedures. Such rights as have now been established in the jurisprudence mentioned above, ie the right to communicate with a lawyer on a confidential basis or the right to make a confidential complaint to the competent authority concerning the manner in which the prisoner is treated, might be included as well as the right of any person deprived of his liberty to be entitled to the free assistance of an interpreter and to have the right to adequate medical care.
5.10. It would no doubt be very useful for the Committee on Legal Affairs and Human Rights to follow closely the final drafting of this protocol and be given an opportunity to consider the text of it before it is finalised by the Committee of Ministers.
6. The rights of prisoners
6.1. Article 64 of the European Prison Rules provide that imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering of the prisoner. Inherent to his deprivation of liberty is that the prisoner must submit himself to the prison regime. In accordance with Article 65 of the European Prison Rules every effort shall however be made to ensure that the regimes of the institutions are designed and managed so as:
"a. to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community;
b. to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners;
c. to sustain and strengthen those links with relatives and the outside community that will promote the best interests of prisoners and their families;
d. to provide opportunities for prisoners to develop skills and aptitudes that will improve their prospects of successful resettlement after release."
6.2. Whilst prisoners may lose the possibility to exercise certain human rights by reason of the fact of deprivation of liberty, they nevertheless retain other rights. Thus, many of the rights listed in the European Convention on Human Rights continue to apply, as was shown in the previous chapter and — perhaps — it may be said that largely speaking they should be able to enjoy a very great number of the rights which are enjoyed by people outside prisons. Although it may be possible to distil some rights of prisoners from the European Prison Rules they do not contain a special chapter on them. This makes us think that the European Prison Rules, especially in the light of the jurisprudence quoted above and in the light of the new draft protocol, might be completed with a chapter on the rights of prisoners which would include an effective right to complain, the right to paid employment, the right to correspond and to use the telephone, the right to have visits and — under certain conditions — the right to furloughs.
Prisons should also be entitled to conditional release after a specified proportion of time served and this should not be too distant from the sentence imposed by the court — three-quarters/two-thirds is about right. Therefore conditional release should take place automatically unless the prisoner has forfeited time served as a disciplinary punishment or the prisoner has been sentenced both currently and previously for some especially serious offence and there is a reason therefore to give special consideration to the question of release before the whole sentence has been served. All this is of course to be stated in legislation.
6.3. Of course prisoners should be entitled to adequate health care. In its 3rd General Report the CPT dealt in considerable detail with the health care services in prisons to which we would like to refer.13 Nowadays HIV infection and Aids constitute serious problems in prisons. There is an urgent need to mobilise the health and social services to deal with these problems and their contributory causes in prisons, including homosexual activity and drug misuse.
6.4. There are two notions which overlap here. One concerns the possibility for foreign prisoners to serve sentences in their own or adopted country instead of the (foreign) centres of residence. In this respect such Council of Europe conventions as the Conventions on the Transfer of Proceedings in Criminal Matters14 and on the Transfer of Sentenced Persons15 could be of great use but should be ratified by more Council of Europe member states. The other notion is that prisoners should as far as possible serve their sentences in prisons which are not impossibly distant from their place of residence so as to facilitate familial and societal contacts (the Angleichungsgrundsatz contained in Section 3 of the German Prison Act) but this is, of course, not always easy in the case of foreigners.
7. The prison staff
7.1. Since the prison staff constitute 70% to 80 % of the running costs of prisons, represent through a life-time career an enormous investment and are the most important instrument for the carrying-out of policy, their importance should be emphasised in any report of this kind. Crucial to the social climate of the prison and for its functioning is the nature of the relationships between inmates and staff. In this area too the CPT reports show variations from positive, relaxed relations between prisoners and the staff, with the latter showing interest and involvement, to relations which are almost non-existent and based on strict notions of control. It is not uncommon to find the CPT reporting that it received complaints about staff brutality and even physical assault. Such complaints are usually hard to verify with certainty but, on occasion, the CPT clearly considered that there had been undue use of violence by the staff. A common defence is that the prisoner attempted first to assault the staff member or was engaged in fighting with another member and had to be forcibly restrained. Where this has meant the excessive use of violence on the part of the staff, it is a clear indication of inadequate training in physical control techniques.
7.2. In this connection it may be noted that a select committee under the European Committee on Crime Problems (CDPC) has just begun work on the status, selection, training and use of prison and probation staff. The Assembly's competent committees may well wish to follow carefully this activity. More than two pages of the European Prison Rules concern the prison staff.16 And one should underline that the prison personnel determine its regime and that they are the most important instrument for the carrying out of policy. Their importance should be emphasised in any report and we would also like to refer to the excellent introduction by Professor Robert at the hearing in The Hague,17 who rightly drew attention to certain paradoxes in the prison situation today. For instance, although there is a tendency towards openness in our societies, modern prisons are more and more closed for security reasons. Another paradox is that although prisons may be more and more overcrowded with prisoners, there is also a tendency for them to be more and more understaffed. In both cases remedies should be sought.
7.3. Times are changing and prisons should also be adapted to modern circumstances and views. A critical appraisal of prison systems and regimes will always be necessary and the best of prison systems may still be the subject of reform. In fact one should not hesitate to introduce novelties and take initiatives. Yet one should not take experiments at the expense of prisoners and staff. The general view is that prison staff should be civil servants and that they should have proper education and training which is twenty-four months in Germany but only six months in Britain. They should be able to handle difficult situations as the one's described above, hunger strikes, uprisings, etc. It may be said that many prison staff are very motivated and devoted to their assignments. It would be disastrous to replace their motivation by the notions of profit and pure efficiency.
7.4. What is essential, in general terms, is that prison systems need to be more sensitive to necessary change and adaptation, not least because prison systems, sociologically speaking, are among the most stable and unchanging systems known to man! This means that the recruitment, selection and training of staff should be congruent wit new and emerging goals for prison systems. The management of staff at all levels must also adapt to changing goals and methods. In this respect recent Danish reforms are especially interesting: the old hierarchies have been dismantled and staff are now called in literal translation "unit staff". Task boundaries are no longer based on quasi-military divisions of rank but on natural forms of co-operation and leadership.
7.5. The training of staff is very expensive, but it seems to be one of the few effective methods to change the situation in prisons. The proportion of a prison's annual budget devoted to training — usually between 1% and 5% — is much too low, especially in view of the increased demands made on prison staff, and the evolving complexity of the prison situation.
8.1. "Privatisation" is certainly not a matter to discuss only briefly and the rapporteurs regret that the scope of this report will not enable them to deal with it in depth. Mention could be made of the following — more as questions than a statement of opinion: To what extent does it seem desirable that the implementation of the most severe punishment provided for in law should be in the hands of entrepreneurs, that is those providing a service for profit and — according to the general laws of the market place — seeking to extend the use of such services? If experiments with privatisation are to be carried out what guarantees are given to ensure that the management and quality of staff are commensurate with the aims of the state concerning imprisonment? What provisions should be devised to ensure that cost-benefit evaluations can be made? What provisions should be made concerning the disciplinary punishment of, and the granting of privileges (for example home leave) to, prisoners in a privatised prison? What precisely are the boundaries of the responsibilities for the private firm and the prison department concerning the running of privatised prisons? Only after detailed answers to these and similar questions have been given is it possible to pronounce upon the desirability of privatising prisons.
9.1. Of course there might be less criminality if our societies were fairer and better, less harsh to their socially ill-adjusted and to their economically deprived members, if there were to be no unemployment, etc. Yet the improvement of our societies is not the subject of this report and, even if we were to reach Utopia, some kind of criminality, and hence the question of criminal sanctions, would be likely to remain.
9.2. The observation that imprisonment is an expensive way18 of making bad people worse is well known and, fortunately, most Council of Europe member states are guided by the principle that imprisonment should be the ultimate sanction to be reserved for especially heinous offences or particularly dangerous offenders. Statistically speaking nearly all countries use other sanctions to a far greater extent — fines, penal warnings in some form, probation, community service, etc.
9.3. The following is a quotation from the Washington Post, reproduced in the Herald Tribune of 9 June 1994 to which we fully subscribe:
"There is no question that those who commit murder, armed robbery, rape and the like are a menace and need to be isolated — not only to punish and perhaps rehabilitate them but to protect society. But most other offenders can be penalised without incarceration if resources are available. Nonviolent criminals, even those who embezzle large amounts or betray the public trust, can be made to pay confiscatory fines, to make reparation for their crimes and to perform sentences of hard work under monitoring. We are not thinking of easy alternative chores but of real penalties of appropriate duration that would severely restrict private life and be seen by the public as justly punitive.
The supervision would be key. Intensive probation is expensive, but it works and it saves money. Electronic monitoring of geographic restrictions is ineffective if violations are not spotted and punished. Work-release is a joke if prisoners simply walk away from a halfway house. But even undertaken with sufficiently heavy monitoring none of these steps would cost as much as incarceration, and each might offer a better prospect of rehabilitation.
There is much room for strenuous argument about all of this. We say only that the argument should be going on in mainstream politics now. Realistic alternatives to prison need to be explored, not out of misguided sympathy for criminals, but rather for the sake of citizens who deserve protection from violent criminals and more effective, less bankrupting penalties for the rest."
9.4. The scope of this report is such that little or no attention is paid to highly important matters such as the specific problems raised by juvenile or female prisoners and by foreigners in prison, community service, probation, the social welfare services, etc.
We hope that some of these matters may be dealt with in some detail by the Committee on Social, Health and Family Affairs which is invited to give its formal opinion to the Assembly.
9.5. Among the conclusions and recommendations we are making we would like to list the following:
i. First there is the problem of overcrowding. No doubt little improvement will or can be made in the European prison system if prisons are overcrowded, that is to say hold more prisoners than they are intended for, and if prisoners are locked up with two, three or more in cells made for only one. This is the first problem to be solved. Council of Europe member states should take adequate measures to reduce the prison population or to eliminate situations of overcrowded prisons. No doubt there is an urgent need to replace old and dystructional prisons. However, we do not believe that the best solution to the overcrowding problem lays in extending the prison system's capacity by building more prisons. We would prefer to reduce reliance on imprisonment. Thus, it is recommended that the Council of Europe make renewed studies of what kind of offences might be depenalised, or decriminalised, ie be replaced by administrative sanctions and measures such as has recently been done in Germany.
This is to be followed by a review of the penal value attaching to various offences with a view to increasing the use of alternative sanctions and reducing the length of imprisonments as possible.
In addition we would like to propose the following.
ii. There should be more recourse to and further studies should be made of alternatives to imprisonment, including electronic control, especially as they are much cheaper to society.
iii. Secondly we would like to recommend the implementation of two important recommendations of the Committee of Ministers of the Council of Europe. The first one, a recommendation with an excellent explanatory memorandum on consistency in sentencing19 pleads for a clear rationale for sentencing practice. Adoption of the various ideas in the recommendation go some way towards making clear when imprisonment should and should not be used. The other recommendation is on community sanctions and measures20 and provides principles for the adoption and implementation of these sanctions and measures as well as specifying a number of safeguards for the rights of offenders.
iv. It is recommended that the European Committee on Crime Problems (CDPC) make a detailed study of the conditions obtaining remand in custody.
v. The adequate implementation of the European Prisons Rules should be a matter of continuous concern to the Assembly and be made a condition for membership of the Council of Europe and be followed-up in accordance with the Assembly's Order No. 488 (1993). The Council of Europe should step up its assistance to applicant countries and new member states in the field of prison reform.
vi. The work at present being undertaken on a draft protocol to the European Convention on Human Rights concerning the rights of prisoners should be encouraged. The Committee on Legal Affairs and Human Rights and, eventually, the Assembly, should be given an opportunity to express their views on this important protocol.
vii. The European Prison Rules should be completed with a catalogue of rights of the prisoner.
viii. Those member states of the Council of Europe which have not yet done so should ratify the European Convention on the Transfer of Proceedings in Criminal Matters and the Convention on the Transfer of Sentenced Persons.
9.6. These proposals may well form the subject of a recommendation of the Assembly to the Committee of Ministers.
9.7. Some members of the Committee on Legal Affairs and Human Rights voted against the draft recommendation when it was adopted on 12 December 1994. They did so not because they disagreed with large parts of it, but because they did not share the general impression the draft recommendation was giving that the length of imprisonment should be decreased. In their view there should be even more and longer imprisonment sentences for serious crimes. In such cases they felt that there was no alternative to imprisonment as a means of protection of the public.
Reporting committee: Committee on Legal Affairs and Human Rights.
Budgetary implications for the Assembly: none.
Reference to committee: Doc 6775 and Reference No. 1856 of 26 March 1993.
Draft recommendation adopted by the committee on 12 December 1994 with 20 votes in favour, 3 against and no abstentions.
Members of the Committee: Lord Kirkhill (Chairman), MM. Schwimmer, Jansson, (Vice-Chairmen), Amaral, Andriukaitis, Arnalds, Bentkowski, Berti, Bindig, Borg, Bučar, Candal, Columberg, Croze, Deasy, Mrs Err, MM. Fogaš (Alternate: Fico), Frunda, Fry, Fuhrmann, Galanos, Mrs Gelderblom-Lankhout, MM. Ghigo, Guenov, Hagĺrd, Mrs Haller, Mrs Holand, MM. Hunault, Inönü, Mrs Jaani, MM. Jaskiernia, Karas, Kempinaire, Loutfi, van der Maelen, Maginas, Mangakis, Mészáros, Moeller, Németh, Rathbone, Robles Fraga, Rodeghiero, Salvi, von Schmude, Severin, Solé Tura, Mrs Soutendijk-van Appeldoorn, MM. Trojan, Vinçon, Vogel, Mrs Wohlwend.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate, Ms Bakardjieva and Ms Kleinsorge.
1 1The explanatory memorandum was drafted in co-operation with the Earl of Dundee (United Kingdom, EDG), Rapporteur for opinion of the Social, Health and Family Affairs Committee.
The authors are most grateful to Mr Norman Bishop, scientific expert of the European Committee on Crime Problems (CDPC), for his very kind and valuable assistance when writing this report. The report also greatly benefited from the most valuable information provided at the hearing which took place on 21 and 22 February 1994 in The Hague.
2 1See Article 37.c of the United Nations Convention on the Rights of Children.
3 2 2nd General Report on the CPT's activities covering the period from 1 January to 31 December 1991.
4 1 In the opinion of the rapporteurs, persons in police custody should have the right of access to a lawyer from the beginning. They (should) have the right to refuse questions in the absence of a lawyer.
5 1 See Chapter 1.
6 2 Much of the information in this chapter is taken from a working paper submitted by Mr Norman Bishop to the hearing in The Hague (AS/Jur (1994) 16) (see Chapter 1).
7 1 Source: Penological Information Bulletin of the Council of Europe, No. 17, December 1992.
8 2 Recommendation adopted on 2 July 1994. See Doc. 7094, report by Mr Rokofyllos, Rapporteur of the Committee on Legal Affairs and Human Rights.
9 1 See Recommendation No. R (87) 3 adopted by the Committee of Ministers of the Council of Europe on 12 February 1987.
10 1 Order No. 488 (1993) on the honouring of commitments entered into by new member states.
11 2 Document DH-CO-PR (93) 22. Copies of this contribution are available from the Secretariat upon request.
12 3 Any system which allows for a prisoner's conditional release on licence before the expiration of the full term of his sentence — subject to an obligation to observe certain conditions. The action to be taken if the conditions are not respected will vary according to national legislative provisions, the nature of the offence or misbehaviour and the time that has elapsed since release from prison.
13 1 See 3rd General Report on the CPT's activities covering the period 1 January to 31 December 1992, pp. 13-21.
14 2 ETS No. 73 ratified by Austria, Czech Republic, Denmark, Netherlands, Norway, Slovakia, Spain, Sweden and Turkey.
15 3 ETS No. 112 ratified by Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, Malta, Netherlands, Norway, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, United Kingdom.
16 1 See Part III of the European Prison Rules.
17 2See AS/Jur (1994) 14, Introductory Note by Christian-Nils Robert, Professor of Penal Law at the University of Geneva.
18 1 In Sweden it is estimated that a prisoner costs between 1 500 and 1 800 Swedish crowns a day (1 000-1 200 French francs).
19 1 Recommendation No. R (92) 17.
20 2 Recommendation No. R (92) 16.