1. Introduction
1. As noted in the motion underlying
this report, prisoners are amongst those most vulnerable to violations of
their fundamental rights.
The European
Court of Human Rights (“the Court”) has stressed that authorities have
a “duty to protect” people in custody at all times.
One
area in urgent need of improvement concerns conditions during transfer
and transportation of prisoners, which may amount to inhuman or
degrading treatment or punishment, as found in judgments of the
Court. Reports of the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT), National
Preventive Mechanisms (NPMs) or other bodies with similar powers
on their visits on the ground have shown that prisoners are frequently
at risk of arbitrary decisions and ill-treatment during transfers.
Such violations of the prisoners’ human rights, by law-enforcement,
prison or other criminal justice staff, or by private contractors,
can take place during any transportation between different domestic
locations (e.g. another prison, police station, hospital, court).
2. During transfer, prisoners may find themselves confined in
extremely small spaces within the transport vehicle, shared with
an excessive number of other prisoners, in poor and unsafe conditions,
sometimes for prolonged periods. In extreme situations, prisoners
have found themselves in transit for a month or more, deprived of
contact with family and lawyers. Even shorter incommunicado periods
can amount to violations according to the United Nations Committee
on Enforced Disappearances. Such isolation increases prisoners’ vulnerability,
since they are denied access to any effective remedy for violations
and can less reliably be visited by monitoring bodies. This report
aims to call on member States to ensure that transportation is “always
carried out in a humane, secure and safe manner”.
3. For the purposes of this report, I sent a questionnaire to
national parliaments to examine the situation across the Council
of Europe member States.
Twenty-eight
countries replied and I would like to thank those parliaments (Andorra,
Albania, Armenia, Austria, Belgium, Croatia, Cyprus, Denmark, Estonia,
Finland, France, Georgia, Germany, Greece, Hungary, Latvia, Lithuania,
Luxembourg, Malta, Montenegro, Netherlands, Norway, Poland, Slovak
Republic, Slovenia, Sweden, Ukraine, United Kingdom) for providing their
valuable feedback. The Committee on Legal Affairs and Human Rights
also held a hearing in June 2018 with the participation of Mr James
McManus, CPT expert and former Professor of Criminal Justice at
Glasgow Caledonian University (United Kingdom), and Ms Heather McGill,
Researcher on Amnesty International’s Eastern Europe and Central
Asia Programme (London, United Kingdom), whom I thank for their
contributions.
2. International standards: general overview
2.1. The
European Convention on Human Rights and other general international
human rights standards
4. The primary norm regulating
conditions in which prisoners are held during transfers is the prohibition
of torture and inhuman or degrading treatment or punishment, enshrined
in Article 3 of the European Convention on Human Rights (ETS No.
5, “the Convention”). The Court has found violations of Article
3 in a number of judgments illustrating the different problems that
may arise during the transfer of prisoners. Several of these cases
involve a range of circumstances individually or cumulatively constituting
violations of Article 3, which I will describe later in more detail.
2.2. Sources
of specific international standards applicable to the situation
of prisoners and other persons deprived of their liberty
3. Ensuring
adequate, safe and humane conditions of transfers
3.1. General
remarks
8. If one is to help prisoners
“lead a responsible and crime-free life” (EPR 102.1), national authorities, including
prison administrations and all officers immediately involved in
the treatment of prisoners, must guarantee that the “regime for
sentenced prisoners shall not aggravate the suffering inherent in
imprisonment” (EPR 102.2). The State has a positive obligation to
ensure that prisoners’ dignity, health and well-being are adequately
secured during imprisonment.
Prisoners
shall be provided with living conditions which respect human dignity
(EPR 49), including during transfers outside prison facilities.
Material and safety conditions of transport have been identified
as essential areas of concern to the dignity of prisoners (EPR 32.2
and Article 99.2 of the ERJO). The frequency and duration of transport
also have a direct impact on the level of stress of prisoners. Other
conditions pertaining to the personal circumstances of prisoners
shall be closely observed; regular and comprehensive assessments
on a case-by-case basis being essential to addressing personal considerations,
which are essential to protecting prisoners from undue strain.
9. A large majority of countries (21) indicated that their national
legislative or administrative frameworks included some legal provisions
and regulations on transfers of prisoners, while only three (Slovenia,
Hungary, Poland) indicated having none. The situation across Europe
remains uneven however: only a third of the countries mentioned
in some detail material requirements of transfers.
3.2. Basic
material and safety conditions
3.2.1. Protection
from public view and anonymity
10. The EPR indicate, in particular
regarding transfers, that “while prisoners are being moved to or
from a prison, or to other places such as court or hospital, they
shall be exposed to public view as little as possible and proper
safeguards shall be adopted to ensure their anonymity” (EPR3 2.1).
Respect for anonymity and privacy of juveniles is also required
during transfers in the ERJO (Article 99.3). According to the replies
to the questionnaire, this aspect of transfers is covered for example
by Austria, Belgium, Finland, France, Latvia and Malta.
3.2.2. Suitability
of conveyances
11. The Court indicated in several
cases that unsuitable material conditions of prisoner transport
would violate Article 3. These included, for example in
Kavalerov and others v. Russia,
transport in compartments without windows, fresh air, natural light
or ventilation; insufficient number of sleeping places; no bedding
or bed linen and air heavy with tobacco smoke. In
Guliyev v. Russia, the Court also
referred to various circumstances relating to a 65-hour transfer
during which the applicant was alone in a 2 m² compartment. Every
two hours he was checked and forced to change his position; sleeping
conditions were further aggravated by the constant lighting in the
compartment. The Court found that, “having regard to the cumulative
detrimental effect which conditions of the transport, in particular
the duration of the journey, confined space, sleep deprivation, insufficiency
of food and possibly inadequate ventilation and lighting, must have
had on the applicant, … conditions … amounted to ‘inhuman’ treatment
within the meaning of Article 3”.
12. The EPR state that “the transport of prisoners in conveyances
with inadequate ventilation or light, or which would subject them
in any way to unnecessary physical hardship or indignity, shall
be prohibited” (EPR 32.2). The CPT has frequently reported adverse
findings
on material standards of prison
vehicles and provided relevant guidance to member States concerned.
It recalled for example that “transport vehicles should be equipped
with suitable means of rest (such as appropriate benches or seats)”.
It added that for “overnight transport by train, compartments should
be equipped with beds or sleeping platforms, and inmates should
be provided with mattresses and sheets or blankets during the journey”.
Hygiene should also meet minimum standards and, for instance, any
toilets within vehicles, boats or trains should be clean. These recommendations
led to a number of improvements in national practices, such as the
cleaning of prison vehicles or ending the use of unsuitable prison
vehicles and/or acquiring new vehicles.
3.2.3. Safety
requirements
13. Vehicles transporting prisoners
can quickly become “death traps”, in the words of the CPT (
Lithuania, 2000), in the event of accidents or other emergencies, if
they fail to meet relevant safety standards. This includes the availability
of safety belts,
functioning intercoms (CPT,
Slovenia,
2001), fire extinguishing devices and emergency evacuation
systems such as doors of secure cubicles/compartments equipped with
a device that automatically (and/or rapidly) unlocks the doors in
the event of an emergency.
For example, while referring
to a boat crossing in Malta, the CPT added that “the detainees should
not remain inside the escort van, if this contravenes the safety
rules of the ferry authorities” and that the van used to transfer
prisoners from Gozo prison to the court on the main island, should
be replaced having been found to be “filthy and dangerous”, with
only a wooden bench without safety belts for seating.
The CPT criticised further the practice
of transporting prisoners in Scotland in vehicles without safety
belts or the possibility for prisoners to communicate with escort
staff, which could be dangerous in case of emergency (
United
Kingdom, 2012).
14. It is essential that the legal framework and practice ensure
that road safety rules are respected and that all prison vehicles,
other means of conveyances when necessary, are fitted with seatbelts
and prisoners wear them at all times. This would also guarantee
that individual spaces are defined, minimising risks of overcrowding.
3.2.4. Space
and occupancy rates
15. Overcrowding can be a serious
concern for safety and further to the dictum in
Kavalerov (above), lack of space
alone may be the crucial factor for the Court to find a violation
of the Convention’s Article 3. In this case, the applicant underwent
multiple transfers in a single compartment of 0.3 m².
In
Khudoyorov
v. Russia, transfers took place in an “individual” one
square metre van compartment shared by two occupants, who took turns
sitting on one another’s lap during a journey lasting up to one
hour. The Court noted that “such transport arrangements are impermissible,
irrespective of the duration”.
The
applicant in
Idalov v. Russia had
been transferred within prisoner compartments of 11.28 m², occupied
by 36 prisoners, and 8.93 m² occupied by 25. It was not conceivable
for the Court that this provided adequate seating and space for
transport under humane conditions; this amounted to inhuman and
degrading treatment in breach of Article 3.
16. Many CPT reports have also raised issues relating to the size
and occupancy rates of conveyances used for prisoner transport,
including the following. The CPT called on the Lithuanian authorities
“as matter of urgency … to significantly reduce” occupancy rates
in railway carriages used to transport up to 16 prisoners in 3.5
m² compartments and 6 in 2 m² compartments (
Lithuania,
2000). The CPT similarly called on Ukraine to remedy overcrowded
railway carriages transporting prisoners (
Ukraine,
2000).
Amnesty
International reported that in Russia the overcrowding is exacerbated
by the fact that each prisoner must carry with him or her all their belongings
during transfers, and there is no provision for baggage on the trains.
17. The CPT has also frequently called for the number of prisoners
transported in trucks, buses and vans to be reduced. It reported
for instance that trucks in Azerbaijan used to hold up to 30 persons
in two 3 m² cubicles and that Romanian prison vehicles were occupied
at times by 40-50 prisoners, while actually suited for the transportation
of 24-30 people. It also criticised overcrowding of Greek prison
vehicles, with 1 m² cubicles intended for two prisoners in fact
holding four, while indicating that “detainees should not have to
stand up during a journey due to a lack of seating space”. It also
found that prisoners in the Republic of Moldova could be transported
in spaces with ceilings as low as 1.3 meters for as much as half
an hour every day. The CPT called for an end to the use of 0.44
m² van compartments to transport prisoners in Luxembourg and of
0.4 m² cubicles in vans and trucks in Lithuania, stating that “such
a confined space is unsuitable for custody purposes, no matter how
short the duration”.
18. Following these CPT visits, some member States have taken
action, yet this remains often only partially satisfactory. For
example, following a
2000 visit by the CPT, the Ukrainian authorities have taken
action to withdraw from service the vehicles which had 0.5 m² compartments
for prisoners. However, in
2009, the CPT found individual compartments in police vans
which continued to be substandard. Following
visits
in 2016 by both the United Nations Subcommittee on the Prevention
of Torture (SPT) and the CPT, the Government of Ukraine has taken
further measures to ensure that vehicles used for prisoner transport
provide a proper level of comfort and security. A 2017 ministerial
decree envisaged full substitution of old vehicles by modern ones.
19. Surprisingly only Germany and Latvia indicated that they had
specific regulations on the provision of space for prisoners in
prison vehicles. Further to the above findings, the CPT has indicated
that “when vehicles are equipped with secure compartments, individual
cubicles measuring less than 0.6 m² should not be used for transporting
a person, no matter how short the duration. Compartments or cubicles
intended to transport more than one inmate for short distances should
offer no less than 0.4 m² of space per person, and preferably more. As
regards longer journeys, compartments should offer at least 0.6
m² of personal space”. Moreover, “compartments or cubicles should
be of a reasonable height”. These indications by the CPT should
give member States sufficient guidance.
3.2.5. Access
to sanitary facilities, comfort breaks, water and food
20. Additional circumstances have
been considered by the Court (see judgments against Russia:
Idalov, Kavalerov and
Guliyev above) in reaching its findings
of violations of Article 3, including the failure to provide for
basic needs such as adequate meals or water, access to a toilet,
or seasonally appropriate clothing (see next section on the latter).
The EPR states that “food shall be prepared and served hygienically”
(EPR 22.3) and necessary arrangements should be made to provide
prisoners with drinking water as required and, for long journeys
and distances, with food at appropriate intervals.
At all times, prisoners should
be “provided with a nutritious diet that takes into account their
age, health, physical condition, religion, culture and the nature
of their work” (EPR 22.1). In
Moiseje
v. Latvia, the applicant, on days when he was transported
to court, was given a lunch that was clearly insufficient to support
the body’s functional requirements, especially given that participation
in court hearings created additional mental stress, and received
only a piece of bread for dinner after returning to prison. In the
circumstances, this amounted to “degrading treatment”.
21. The CPT has recommended that in the context of long journeys,
arrangements, including regular stops with an adequate number of
escorting officers, should be made to allow detainees to have access
to sanitary facilities or to satisfy the needs of nature in conditions
offering sufficient privacy, hygiene and dignity.
Therefore, when security considerations
or the short itineraries do not allow for comfort breaks, vehicles
should be equipped with adequate toilet facilities. For long transfers,
prisoners should also be provided with access to open air and physical
exercise. The 2017 report by Amnesty International reported
that prisoners in Russia deliberately restricted their intake of
food and water in the days before a transfer because they knew they
would have no access to toilets.
22. When analysing the replies to the questionnaire, I took note
that only six countries had rules on the provision of food during
transfers (i.e. Armenia, Austria, Georgia, Montenegro, Netherlands,
the Slovak Republic and Ukraine); Georgia and the Netherlands were
the only ones to report rules on the provision of water. Very few
countries have actually regulated the provision of breaks during
long journeys. The United Kingdom provides for adequate comfort
breaks. The Netherlands does not allow for breaks unless there is
a genuine urgency for food and drink. Armenia and Ukraine make provisions
for breaks in the case of long transfers. Provisions are often security
oriented rather than aimed at ensuring that the basic needs of those transferred
are cared for. Montenegro and Belgium for example require that breaks
take place near a penal institution or a police station.
3.2.6. Clothing
and personal property
23. Inadequate clothing can also
be considered as a breach of prisoners’ dignity. While the Court
opined that clothes must be appropriate for seasonal conditions,
the CPT stated that prisoners must have an opportunity to wash or
change their clothes before court appearances (
Lithuania,
2000). Ensuring that prisoners can wear non-prison issue
clothing during transfers can also help authorities ensure that
prisoners are “exposed to public view as little as possible and
proper safeguards [are] adopted to ensure their anonymity” (32.1
EPR). This is mostly relevant when the prisoners have to travel
the distance to and from the prison conveyances.
24. Furthermore, according to the “Nelson Mandela” Rule 67, prison
administrations shall ensure that the prisoners’ property is protected
from loss or damage during the transfer. Given the above-mentioned
reports on overcrowding in prison transport, authorities shall in
particular take care to ensure space is provided for prisoners’
luggage and avoid any situations where prisoners must carry their
property in confined spaces.
25. The Criminal Enforcement Code of Ukraine makes provisions
to ensure that prisoners are transferred with seasonal clothes and
footwear (Article 88). In the United Kingdom, Her Majesty’s Inspectorate
of Prisons (HMIP) recommends that prisoners do not have to “wear
prison clothing outside the prison at, for example, court appearances”.
Austria and Malta have similar
provisions on clothing. Additionally, Greece, Sweden and Ukraine
have indicated that prisoners may bring personal property during
transfers, some indicating weight limits.
3.3. Duration
and frequency of transfers
3.3.1. Duration
of transfers
26. Ensuring that prisoners are
not kept in vehicles for longer than is necessary is essential.
In
Andrii Yakovenko v. Ukraine, “regard
being had to the total length of [a period of some two months] spent
either in prison vans, trains or transit points, at least two of
which offered conditions of detention proscribed by Article 3”, the
Court considered that the conditions of the applicant’s transit
amounted to inhuman and degrading treatment. In
Sayerov v. Russia (above), although
the journey itself lasted only 35-40 minutes, the applicant was
made to wait in the van for two hours before departure and again
on arrival. The Court noted in particular that “the negative effects
of the [cramped] conditions of transport must have increased in
proportion to the time the applicant stayed inside the vehicle”.
Amnesty
International has reported on excessively long transfers in Russia;
one example from 2001 was as long as four months.
A recent transfer of two Russian
prisoners took over a month in overcrowded and inadequate conditions
and during which the families and lawyers had very little knowledge
of their whereabouts. While the distance could have been covered
in 24 hours by train, this situation made the prisoners extremely
vulnerable to inhuman and degrading treatment.
27. Some countries provide in their legislation that transfers
should use the shortest routes available (e.g. Belgium, Denmark)
without creating unnecessary delays (e.g. Finland, United Kingdom).
Member States are also highly advised to invest in the renovation
or building of adequate holding cells at courts and other facilities used
for temporary custody.
Amnesty International in a 2017 report
on “
Prisoner
Transportation in Russia: Travelling into the Unknown” has also advised that a maximum travel time of seven
days for prisoner transport should be introduced.
3.3.2. Frequency
of transfers
28. As understood from some of
the above cases and reports, the frequency of transfers in inadequate conditions
may also violate Article 3 of the Convention. The CPT has observed
that the “constant transfer of prisoners from one institution to
another is disruptive both for the person in question as well as
for other prisoners and staff; moreover, it prevents social integration
and promotes a sense of alienation within the individual, which
is likely to lead to the prisoner becoming more and more difficult
to manage”. The CPT also acknowledged that the authorities may have
to deal with exceptional considerations of overcrowding and order within
the penitentiary facility, but stressed that countries should “avoid
as far as possible the needless uprooting of prisoners” (
Greece,
2005). Certainly, prison transfer should never be a disciplinary
measure, discrimination or punishment “in disguise”, nor a means
to punish family members (see also ERJO Article 97). In
Orchowski v. Poland, the Court
stated that “frequent transfers of a person … may create a problem
under the Convention [and may] increase the feelings of distress”.
29. In
Khudoyorov v. Russia (above),
the
applicant had been transferred between prison and a courthouse “no
fewer than 200 times” during a four-year period. The Court found
that the frequency of transfers, along with lack of food or exercise
on the days in question and lack of space during the journey exceeded
the minimum level of severity to amount to a violation of Article
3. In
Bamouhammad v. Belgium,
the applicant had to undergo 43 transfers between 2006 and 2013,
because of his “disruptive behaviour”. The Court ruled that the
transfers resulted from individual prejudice, which had very negative
consequences on the prisoner’s psychological well-being and created
and exacerbated his anguish, and did not strike a just balance between
the imperatives of security and the obligation to provide humane
conditions of detention.
30. Nearly half of the member States that replied indicated that
there were arrangements within the penal system to assess the reasons
for transfers of prisoners, involving frequently a written order,
and most often personalised plans, to be issued before any transfer
takes place. These safeguards should limit the frequency of transfers
to the strict minimum and any potential abuses.
3.4. Requirements
pertaining to personal considerations
31. Special provisions may be required
when transferring certain categories of prisoners, including pregnant women,
persons with disabilities, elderly prisoners and those with particular
physical or mental health conditions. For instance, “authorities
shall pay particular attention to the requirements of women such
as their physical, vocational, social and psychological needs when
making decisions that affect any aspect of their detention” (EPR
34.1) and women should always be accompanied by female staff during
transfers. Likewise, specific arrangements should be made for the
transportation of juvenile offenders and the children of prisoners (CPT,
United
Kingdom,
2001 and
2008), including the provision of specifically trained escorts.
Furthermore, “juvenile offenders shall be segregated from adults
and be accorded treatment appropriate to their age and legal status”
(article 10-3 of the ICCPR). When considering the separation of
children from adults in prison, the EPR advise authorities to always
assess whether the situation is in the best interests of the child
(Rule 35.4). When transferring inmates, authorities should always
take into consideration “the needs of prisoners who belong to ethnic
and linguistic minorities” (EPR 38.1). The separation of different
types of prisoners by reference to their sex, age, criminal record,
legal reason for detention and treatment needs, as stipulated in
the “Nelson Mandela” Rule 11, also applies during prisoner transfer.
32. Prison authorities are required to “safeguard the health of
all prisoners in their care” (EPR 39) and ensure that transport
conditions are appropriate to the prisoners’ medical condition (EPR
41).
For instance, officers, taking
over the responsibility of prisoners being transferred shall ensure
that ill prisoners continue to receive their required medication
and that, whenever needed, sanitary items are provided during transfers,
vehicles are suitably equipped for medical transportation (e.g.
provision of a wheelchair ramp, medical bed) of persons with disabilities
if need be, and prisoners are accompanied by medical staff if their
medical condition so requires.
In preliminary observations
made by a CPT delegation following a
2018 visit to Greece, it was considered that inmates transferred
to an establishment for psychiatric assessment should be, primarily, transported
by health care staff.
33. In
Topekhin v. Russia,
the applicant, who was bedridden and suffered from a serious back
condition and bladder problems, complained about the conditions
of his 300 km transfer in standard train carriages and prison vans
with no special equipment installed to meet his needs. The authorities
treated “with indifference his complaints of acute pain when he
was lying on the hard floor of the prison van or being carried around
on a blanket used as a stretcher”. The Court found that “the cumulative
effects of the material conditions of the applicant’s transfer,
and the duration of the trip, were serious enough to qualify as
inhuman or degrading treatment within the meaning of Article 3”.
In
Hüseyin Yildirim v. Turkey, the
transport by unqualified escorts of an invalid prisoner on the floor
of a vehicle while other prisoners were trying to keep him stable
was found to amount to degrading treatment, in breach of Article
3.
In
Elefteriadis v. Romania, exposing
a prisoner with chronic pulmonary disease to other inmates’ tobacco
smoke in unventilated railway carriages contributed to a violation
of Article 3.
Amnesty
International has recently reported that prisoners in Russia “with
chronic health conditions such as diabetes and asthma are denied
access to necessary medication during transportation”.
34. Physical and psychological health and stress assessments (EPR
42.3) are essential when considering the need to provide specific
medical arrangements or isolate prisoners from others. When appropriate, prisoners
“suspected of infectious or contagious conditions” (EPR 42.3-f)
should be isolated.
In
Kavalerov (above),
the Court found that transport alongside prisoners infected with
tuberculosis in its open form amounted to a violation of Article
3 of the Convention. This need for isolation of prisoners suffering
from diseases should be assessed in relation to the specific characteristics
of the disease and the prisoner in question: the CPT has indicated
that there is “no medical justification for the segregation of prisoners
solely on the grounds that they are HIV-positive” (CPT,
Lithuania,
2004; see also EPR 42.3-g).
35. Some member States (including Belgium, Finland, France, Georgia,
Greece, Montenegro, Netherlands, the Slovak Republic, Sweden and
Ukraine) have already indicated in their respective national legal
frameworks the importance of carrying out pre-transfer risks assessments
of health statuses and any other special considerations, which often
lead to the obligation to devise adequate individualised plans.
Georgia and Ukraine make provisions for medical escorts if need
be. France’s Criminal Procedure Code (
Article
D292), for example, states that the prisoner’s state of health
can be a reason to postpone the transfer. The Swedish Ombudsperson advises
that “when transferring persons with problems of substance abuses,
body and bag searches should always be undertaken prior to such
transfer unless it is evidently unnecessary. Items that could be
harmful to the detainee, such as medicine, should be stored in such
a way that the detainee cannot access them”. Some member States
(e.g. Estonia, Georgia, Greece, Netherlands, Ukraine) have also
made specific provisions on the separation of certain categories
of prisoners during transfers. In Greece, Presidential Decree 141/1991 states
that transfers of men and women with the same escort should be avoided,
but if it is necessary, women should be detained separately and
should be accompanied by female police officers. Likewise, minors
under the age of 17 are accompanied by specially trained police
officers; the Assembly recommended in
Resolution 2010
(2014) on child-friendly juvenile justice that member States
shall “ensure that all actors involved in the administration of
juvenile justice receive appropriate training, with a view to guaranteeing
an effective implementation of children’s rights in this context”.
4. Use
of force and means of restraint
36. The “general approach to good
order” defined by the EPR is that “requirements of security, safety
and discipline” shall be taken into account, “while also providing
prisoners with living conditions which respect human dignity” (EPR
49). “Security measures applied to individual prisoners shall be
the minimum necessary to achieve their secure custody” (EPR 51.1),
and address risks of escape (Rule 51), or the threats to the safety of
others or the prisoners themselves (Rule 52).
For example, in general, night-time
transfers should be avoided unless absolutely necessary.
37. While prison administrations shall be responsible for the
“safety and security of prisoners, staff, service providers at all
times” (“Nelson Mandela” Rule 1), member States should maintain
an adequate staff to prisoner ratio, which allows them to respond
to the needs of the prisoners during transfers. According to the
CPT, prisoners being transferred should always be escorted (
Switzerland,
1996). This also applies where transportation is outsourced
to other State agencies or private companies.
Regarding
escorts, governments shall ensure that training and information,
on the prohibition of torture and inhuman and degrading treatment and
relevant international human rights standards, are fully included
in the training of persons involved in the treatment of detainees
(EPR 81).
38. The amount of force (EPR 64-67) and instruments of restraint
(EPR 68) used shall always “be the minimum necessary and shall be
imposed for the shortest necessary time”. These rules apply to transfers
as well. As a general rule, handcuffs, restraint jackets and other
body restraints shall not be part of a systematic practice, nor
be used except a) “if necessary, as a precaution against escape
during a transfer” or b) “if other methods of control fail, in order
to protect a prisoner from self-injury, injury to others or to prevent
serious damage to property” (EPR 68.2; see also ERJO Article 91.1).
The CPT has advised member States to ensure that the use of force
and restraints become exceptions which are strictly regulated following
systematic tests of proportionality and, in the case of the use
of restraints, individual risk assessments of all prisoners being transferred.
There
is no need to use means of restraint “when detainees are locked
inside secure cubicles or compartments” (
Ireland,
2006) nor in most transfers to hospitals (
France,
2015). The CPT has also warned against handcuffing prisoners
behind the back when without seatbelts, “given the potential for
discomfort for the prisoner concerned and the risk of injury in
case of an accident, or if the vehicle had to suddenly come to a[halt]”.
Prison staff should be trained and
encouraged to use methods other than handcuffs and body belts for
controlling prisoners, such as verbal instruction and manual control
techniques (
CPT,
Hungary, 2005).
39. In
Mouisel v. France,
the Court found that “having regard to the applicant's health, to
the fact that he was being taken to hospital, to the discomfort
of undergoing a chemotherapy session and to his physical weakness, …
the use of handcuffs was disproportionate to the needs of security”.
In
reports on France (visits of
2015 and
1991), the CPT highlighted that some prisoners with disabilities
or illnesses indicated being restrained at their hands and legs
during their transfer to hospital. In 2017,
Amnesty
International reported that prisoners in Russia were even handcuffed
while accessing toilets. These types of practices should be prohibited
by all means and never should the law treat transportation as a
sufficient reason for the use of handcuffs or other restraining
measures.
40. Additionally, some means of restraint are absolutely prohibited.
These include chains and irons (EPR 68.1), electric stun body-belts
(CPT,
Hungary,
2009), or devices used on detainees to block their vision –
for example, by means of opaque or image-distorting glasses or blindfolding
them – while they are being transported from one location to another.
In the context of its
2009,
2013 and
2017 visits, the CPT also criticised the use in Belgium
of “acoustic” helmets that played loud music, which – in combination
with the forced wearing of opaque or image-distorting glasses –
was intended to prevent certain categories of prisoners from identifying the
route taken, speaking among themselves or overhearing radio communications
during transportation; such techniques of spatio-temporal disorientation
did not comply with use of force principles, and could be considered
as inhuman or degrading treatment. Furthermore, in the event of
escort staff ill-treating them, it would be difficult for the prisoners
to identify the perpetrators. I call on all member States to ensure
no such practices exist in their national settings.
41. Several countries that replied to the questionnaire indicated
that coercive measures were permitted where absolutely necessary,
including Armenia, Austria, Denmark, Finland, France, Greece, Norway, Montenegro,
Slovenia, Sweden and Ukraine. For instance, in Denmark, handcuffs
may only be used if, in each case, it is specifically assessed to
be necessary in order to 1) avert imminent violence or overcome
violent resistance; 2) to prevent suicide or self-mutilation; or
3) to prevent escape. For long transfers, the Danish authorities
are asked to consider whether transport belts with handcuffs should
be used as an alternative to ordinary handcuffs, in order for the
transfer to be carried out with as little discomfort as possible
for the detainees. Moreover, a provision is made for handcuffs to
be hidden under the prisoner’s clothing for discretion. The law
also requires that staff checks whether handcuffs are not too tightly
fitted. In Sweden, the person in charge of transport has to make
notes, which include the grounds for the action taken, the nature
of the instrument of restraint and information on the duration of
the measure. It should further be recorded if the person has been
examined by a doctor. In the Netherlands, according to the national
rules governing the use of force in penal institutions (Geweldsinstructie
penitentiaire inrichtingen), staff members or employees are authorised
to use force and measures intended to restrict freedom, such as
handcuffs and leg restraints, providing that they have sufficient
skills to do so. Also, the Norwegian
Execution
of Sentences Act requires authorities to attempt less invasive measures.
If those are unsuccessful or clearly inadequate, more coercive measures
can be used. It adds that “the Norwegian Correctional Service shall
continually assess whether there are grounds for maintaining the
measure,” to ensure that the process does no unnecessary harm or
suffering to the persons involved.
5. Provision
of information and contacts with legal representation, families
and the outside world
42. Prisoners shall always be informed
in writing and orally in a language they understand of their rights
and duties during transfers (EPR 30.1 and 38.3). They should be
informed in advance of the reasons for transfer, the scheduled date
and time of the transfer and the place they will be going to.
Moreover, “prisoners
shall be allowed to inform their families immediately of their imprisonment
or transfer to another institution …” (EPR 24.8); furthermore, “[u]pon
… the transfer of a prisoner to a hospital, the authorities shall,
unless the prisoner has requested them not to do so, immediately
inform the spouse or partner of the prisoner, or, if the prisoner is
single, the nearest relative or any other person previously designated
by the prisoner” (EPR 24.9). The immediacy of information provision
is essential to avoid any undue hardship. In cases where the form
of communication is not immediate, such as with postal services,
sufficient time should be given so that the family receives the
communication before the transfer takes place.
There
is a positive duty imposed on prison authorities to facilitate contacts
with the outside world (EPR 24.5), which should apply to transfers
as well. “Communication may be subject to restrictions and monitoring
necessary for the requirements of … maintenance of good order, safety
and security …, but such restrictions, including specific restrictions
ordered by a judicial authority, shall nevertheless allow an acceptable
minimum level of contact” (EPR 24.2).
43. The right to inform family or other contact persons about
any transfer is a key safeguard against torture and other ill-treatment,
incommunicado detention and enforced disappearance. Article 2 of
the
International Convention
for the Protection of All Persons from Enforced Disappearance defines “enforced disappearance” as “the arrest, detention,
abduction or any other form of deprivation of liberty by agents
of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment
of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law”.
In
Yrusta v. Argentina, in which a
detainee spent seven days in transit without his family receiving
any information on his whereabouts or even being informed of the
transfer, the Committee on Enforced Disappearances found a violation
of the aforementioned Convention’s provisions on prohibition of
secret detention, access for family members to information on a
detainee’s whereabouts and the right to a judicial remedy for obtaining
information on whereabouts.
44. Imprisonment far from the place of residence may amount to
a violation of Article 8 of the European Convention on Human Rights
(right to family life); in the case of
Khodorkovsky
and Lebedev v. Russia,
the Court
found a violation where the applicants were sent to prisons 6 800
km and 4 000 km away from their families’ places of residence. The
2017 Amnesty International report described the quasi-systematic
dispersal of prisoners to detention facilities far from their homes
as “a unique penal culture in Russia that combines imprisonment
and exile”. Although Article 73 of the Russian Criminal Executive
Code states that prisoners should serve their sentence “in penal
institutions within the boundaries of the territorial unit … in
which they had been living or were sentenced”, it also provides
for exceptions, including when there is no appropriate penal institution
in that region; for women and juveniles, who are sent wherever there
are appropriate institutions; and for those convicted of particularly
serious crimes, who serve their sentences at the discretion of the
Federal Penitentiary Service. As a result, journeys often take a
month or more. The Amnesty report also notes that neither prisoners
nor their families or lawyers are informed of the final destination
before the transfer begins; indeed, under the Criminal Executive
Code, they need only be informed within ten days of arrival. In the
meantime, they are deprived of contact with the outside world, which
may amount to “enforced disappearance” and one can imagine the “disorienting
effect” of such practice on the prisoners.
45. As explained by the commentary of the EPR, “to adhere to the
limits set by Article 8.2 of the Convention on interference with
the exercise of [the right to respect for private and family life]
by a public authority, restrictions on communication should be kept
to the minimum. … The rules according to which restrictions are imposed
must be spelt out clearly, “in accordance with law” as required
by Article 8.2 and not be left to the discretion of the prison administration
(see
Labita v. Italy)”.
46. Keeping proper records of prisoners’ transfers is an important
safeguard against enforced disappearance (Rule 7, Nelson Mandela
Rules). The UN
Declaration
on the Protection of all Persons from Enforced Disappearance also states that “an official up-to-date register of
all persons deprived of their liberty shall be maintained in every
place of detention. Additionally, each State shall take steps to
maintain similar centralized registers”. The relevant information
contained in these registers shall be made available to families and
counsel, to any judicial or other competent and independent national
authority and to competent international bodies, seeking to trace
the whereabouts of a detained person (Article 10). A good practice
worth citing here is the United Kingdom’s “
prison location service” which is available to families and other persons searching
for the location of prisoners who have agreed to share this information.
I would recommend that such services be made available in other
member States.
47. In response to the questionnaire, a third of the countries
that replied (for example Estonia, Greece, Hungary, Lithuania, Netherlands,
Norway, Poland, Slovenia) noted that they had no specific rules
on the provision of information to prisoners, lawyers or families
concerning the transfer of prisoners. While some countries’ legislation
suggests that it would be possible to prevent information from being
provided to prisoners before the transfers (for example Belgium,
France, Germany, Sweden), it is essential that countries guarantee that
prisoners are informed before any transfers (as in Albania, Austria,
Croatia, Denmark, Estonia, Finland, Norway, Sweden, and the United
Kingdom). The United Kingdom’s national preventive mechanism will
assess whether women, children and young people “understand where
they are going and what to expect when they arrive, … are given
sufficient notice of planned transfers, and are able to make a telephone
call to their family, next of kin and/or legal advisor (subject
to well-evidenced security considerations)”. A majority of member States
have made provisions for families or legal representatives to be
informed before and after the transfer, as an obligation imposed
on the authorities or through the prisoner’s right to communicate.
While this right to communicate may be restricted in some countries
before the transfer (for example Estonia, Norway and the Slovak
Republic), it is capital that member States have legal provisions
ensuring that prisoners’ families are informed immediately after
they reach their destination (such as in Albania, Belgium, Denmark,
Finland, France, and Germany). Some countries, however, allow for
the provision of information to be delayed even after arrival, such
as Armenia (three days), Ukraine (up to three days) and Georgia
(one day). Furthermore, more than half of the replies indicated
that prisoners were allowed no contacts with the outside world during transfers,
which creates a risk for prisoners to be kept away from their families
and legal representatives’ close observation. Only Norway replied
that it allowed for some contact with the outside world during transfers,
on certain conditions.
48. National legal frameworks and practices on the provision of
information clearly need to be improved. Member States should strive
to adequately regulate any restrictions on provision of information
to prisoners and contacts with lawyers and close relatives. Such
restrictions should never create unnecessary suffering, nor be left
to the unfettered discretion of the prison administration.
6. Oversight
on conditions of transport and treatment of prisoners
49. Complaint mechanisms are essential
safeguards against inhuman and degrading treatment during transfers.
Victims of any such abuse should obtain redress and have an enforceable
right to fair and adequate compensation (
Article
11-16 CAT; also Article 13 of the European Convention on Human
Rights, right to an effective remedy). As explained by the CPT’s
27th General
Report (2018), “the proper handling of complaints made by persons
deprived of their liberty, irrespective of the place or situation
in which they are held and the legal framework applicable to their
deprivation of liberty, requires the observance of certain basic
principles: availability, accessibility, confidentiality/safety,
effectiveness and traceability”. Finland and Denmark informed me
that their authorities were required to provide prisoners with adequate
information on complaint mechanisms.
50. Independent monitoring of conditions of treatment of prisoners
during transfers must be facilitated and reports made public (EPR
93). In the replies to the questionnaire, 10 countries indicated
that they have internal inspection mechanisms. In fact, most member
States have functioning national preventive mechanisms.
In the United Kingdom,
Section
81 of the Criminal Justice Act 1991 sets out a very interesting monitoring process for prisoner
escorts, which includes a “prisoner escort monitor, that is to say,
a Crown servant whose duty it shall be to keep the arrangements
under review and to report on them to the Secretary of State” and
“a panel of lay observers whose duty it shall be to inspect the
conditions in which prisoners are transported or held in pursuance
of the arrangements and to make recommendations to the Secretary
of State”. Any allegations made against prisoner custody officers
and any alleged breaches of discipline on the part of prisoners
for whose delivery or custody such officers so acting are responsible”
will be investigated. A list of criteria for assessing the expected
treatment of and conditions for men in prisons has been drawn up
by the national preventive mechanism in 2017 in which prisoners
are expected to “travel in safe, decent conditions, are treated with
respect and attention is paid to their individual needs”.
A similar expectation
can be found in the equivalent document on
prisons
for women and
institutions
for children and young people.
51. Several national monitoring bodies have developed expertise
on human rights issues for prisoners during transfer, through internal
research programmes and co-operation with relevant independent experts, non-governmental
organisations (NGOs) and competent international monitoring bodies.
In Sweden, for instance, the parliamentary ombudsman has decided
to focus, in 2018-2019, research on transfer of prisoners, as it
was a regular concern raised during interviews and coincided with
legislative changes on transportation. This reflects the work undertaken
by the CPT in preparing the recently published factsheet on transport
of detainees.
7. Conclusions
and general policy recommendations
52. As can be seen from the foregoing,
inadequate conditions of prisoner transport is a problem that affects or
has affected a number of Council of Europe member States. International
standards, including the Court’s case law and Council of Europe
and other standards such as the EPR and CPT recommendations, are increasingly
clear on many important aspects relating to the conditions in which
prisoners can properly be transported with due respect for their
human dignity. Basic standards can readily be identified on issues
such as the amount of space that should be available to each prisoner;
lighting, heating, ventilation and air-conditioning; safety measures;
provision of food and water; access to toilet facilities; allowance
for uninterrupted sleep with appropriate bedding; special provisions
for the needs of sick prisoners and prisoners with disabilities;
prevention of the use of repeated and long transfers as disciplinary
measures; and provision of information to family members or other
designated persons. Nevertheless, it appears from the Court’s judgments
and the CPT’s reports that these standards are either insufficiently
known and understood, or inadequately applied, in a number of Council
of Europe member States.
53. On the basis of the foregoing analysis of standards and assessment
of the factual situation across Council of Europe member States,
I would propose a series of conclusions and recommendations as set
out in the attached draft resolution and draft recommendation.