Europe: the long road to human dignity

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09 Jun 2021
Maite De Rue

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Maïté De Rue is Legal Adviser to the Open Society Justice Initiative and Former 1st Vice-President of the European Committee for the Prevention of Torture (CPT). Here, Maïté discusses the overuse of pre-trial detention in Europe and its consequences.

An ever-increasing number of prisoners are being held in pre-trial detention. In certain Council of Europe member states, this number has reached worrying prop­ortions: the average percentage of prisoners who are pre-trial detainees is nearly 29%, and could hit 45% of the prison population in the most extreme cases. These individuals are being deprived of their freedom without having been tried or finally sentenced in court.

The significant proportion of remand prisoners in the incarcerated population is striking in more ways than one: it is a major cause of prison overcrowding, which especially affects those entitled to be presumed innocent; and remand prisoners are often held in conditions that are worse than those experienced by convicted persons. The inspection work of the European Committee for the Prevention of Torture (CPT) has been highlighting these problems for over 30 years.

Beyond the serious problem of overcrowding, two additional realities are of particular concern. In several states, contact with loved ones is drastically limited for prisoners awaiting trial. Access to activities is generally very limited as well.

Ever-worsening prison conditions

In many European countries, prisons and other detention facilities are characterised by serious overcrowding. This often goes hand in hand with poor physical conditions. In some cases, prison conditions are bad enough to amount to inhuman or degrading treatment, outlawed by Article 3 of the European Convention on Human Rights (ECHR).

The CPT maintains that every inmate should have a minimum living space of 4 sq. m in multi-occupancy cells and 6 sq. m in single-occupancy ones.[1] The European Court of Human Rights, on the other hand, takes a more limited approach. In a Grand Chamber judgment of 20 October 2016 (Muršić v. Croatia), the Court confirmed that a “requirement of 3 sq. m of floor surface per detainee in multi-occupancy accommodation should be maintained as the relevant minimum standard for its assessment under Article 3 of the Convention” (para. 110).[2] The Court adds that there will otherwise be a strong presumption of a violation of Article 3. This presumption can be rebutted by “factors capable of adequately compensating for the scarce allocation of personal space” (para. 126).[3]

However, these CPT and Court standards are often not met for people in pre-trial detention.[4] The latter are held in overcrowded, poorly ventilated, even pest-infested communal cells, with limited natural light.

In addition, certain states allow prolonged detention in police holding cells—facilities not designed for such use.[5] Being held in police stations subject defendants to an increased risk of pressure, intimidation or ill-treatment, as highlighted by the CPT.

Unwarranted restrictions on contact with family

Keeping in touch with loved ones is crucial for people in prison. The ECHR regards this as part of the right to respect for private and family life (Article 8) and the CPT also considers this as part of human dignity (protected by Article 3). Remand prisoners should at least have the same opportunities for contact as convicted prisoners. The CPT shares this view.

However, several European countries impose significant restrictions on remand prisoners, placing them in a very vulnerable situation. In many states[6], visits and/or phone calls are subject to the decision of the magistrate in charge of the investigation. Inmates may thus be without contact for several months. In some states, visits are only allowed in a closed visiting room, separated by glass or a partition grid[7]. This prevents any physical contact. Contact may not be allowed at all for remand prisoners.[8] Such restrictions on visits should only be applied in exceptional cases, following a thorough individualised assessment of any relevant security risks.

Almost no access to activities

All too often, being held on remand means no activities whatsoever for prisoners, who remain in their cells for 22 to 23 hours a day in often deplorable conditions.[9] The organisation of activities for pre-trial detainees may present practical difficulties, given the high turnover of inmates. However, such difficulties cannot justify leaving remand prisoners with nothing to occupy their time, especially where they are detained for long periods. The CPT recommends that all inmates, whether on remand or convicted, be allowed to spend a significant part of their day (eight hours) outside their cells. They should be participating in a variety of motivating activities (work, studies, sports, community activities, etc.). The CPT also stresses that the more time spent in custody, the more varied the activity program should be.

Restoring dignity

Excessive use of remand is seen as a heavy human and social burden. Too many inmates find themselves isolated and idle, held in appalling physical conditions, before having even been tried. Society should be tackling this problem head-on and ensuring that human dignity finally be restored in prison. This requires a drastic reduction in the number of people put on remand and an urgent review of living conditions in prison.

[1] Sanitary facilities are excluded from the calculation of available space. For some years now, however, the CPT has been promoting broader desirable standards for collective cells, based on the observation that the standard of 4 sq. m risks leading to unacceptably cramped situations. Thus, living space should be at least 10 m2 for two prisoners, 14 sq. m for three prisoners and 18 sq. m for four prisoners. See Espace vital par détenu dans les établissements pénitentiaires: Normes du CPT, 2015, CPT/Inf (2015) 44.

[2] The Court found that it did not need to agree with the CPT's standards because of the different roles of both institutions, with the CPT being responsible for preventing ill-treatment, and the Court for deciding whether a violation of Article 3 occurred, by considering all the relevant case circumstances (paras. 112-113).

[3] These specific factors are linked to the duration of incarceration, freedom of movement outside the cell, out-of-cell activities available to inmates, and general decency of the prison conditions (paras. 129-135).

[4] See in particular the CPT reports of recent years: Republic of Moldova, 2020 visit, para. 63; Ukraine, 2017 visit, paras. 62-64; Montenegro, 2017 visit, para. 50; Serbia, 2017 visit, para. 49; Albania, 2017 visit, para. 51; Belgium, 2017 visit, para. 66; Turkey, 2017 visit, paras. 92-93; Switzerland, 2015 visit, para. 46; France, 2015 visit, para. 42. See also the 26th general report on the CPT's activities (2016), with a chapter on remand, spec. para. 56.

[5] See, for example, the CPT report on the Romania visit, 2018, para. 32.

[6] See, for example, the following CPT reports: Austria, 2014 visit, para. 85; Georgia, 2014 visit, para. 115; Switzerland, 2015 visit, para. 68; Moldova, 2015 visit, para. 130; Bosnia and Herzegovina, 2015 visit, para. 78; Kosovo, 2015 visit, para. 78; Grand Duchy of Luxembourg, 2015 visit, para. 71; Macedonia, 2016 visit, para. 47; Poland, 2017 visit, para. 84; Lichtenstein, 2016 visit, para. 50; Ukraine, 2017 visit, para. 101.

[7] See in particular the following CPT reports: Croatia, 2017 visit, para. 65; Serbia, 2017 visit, para. 66; North Macedonia, 2016 visit, para. 47; Bosnia and Herzegovina, 2015 visit, para. 78; Switzerland, 2015 visit, para. 69; Austria, 2014 visit, para. 86.

[8] See, for example, Georgia, 2014 visit, para. 115.

[9] See in particular the following CPT reports: Croatia, 2017 visit, para. 39; Poland, 2017 visit, para. 72; Serbia, 2017 visit, para. 50; Slovenia, 2017 visit, paras. 41-45; Switzerland, 2015 visit, paras. 46-48.

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