Requirements of the European Prison Rules regarding restrictions on the rights of persons deprived of liberty

REQUIREMENTS OF THE EUROPEAN PRISON RULES REGARDING RESTRICTIONS ON THE RIGHTS OF PERSONS DEPRIVED OF LIBERTY AND THEIR IMPLEMENTATION IN NATIONAL LEGISLATION

Recently, calls and proposals for amending the current criminal executive legislation have become increasingly frequent. It seems this is due to several factors:

a) The renaming of the State Department of Ukraine for the Execution of Sentences to the State Penitentiary Service marked an attempt to change the philosophy of sentencing. Clearly, a change in philosophy cannot be achieved merely by ‘changing the signs’ on criminal executive institutions; it requires a demonstration of actual movement towards the realisation of this idea;

b) Non-governmental organisations involved in the criminal executive sphere constantly point to problems regarding the compliance of national legislation with international standards—for instance, the inconsistency of the Criminal Executive Code of Ukraine (hereinafter – the CEC) with the Constitution of Ukraine, particularly regarding medical and pension provision for convicts, the right to work in places of detention, the right to judicial protection, public oversight, and others;

c) Everyone remembers that many of the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment have still not been taken into account by the Ukrainian authorities;

d) The Law of Ukraine ‘On the Execution of Judgments and Application of the Case-Law of the European Court of Human Rights’ stipulates that, with the aim of eliminating systemic defects underlying violations identified by the European Court of Human Rights (ECHR), as well as eliminating grounds for applications against Ukraine caused by problems already considered by the Court (Art. 13 of the Law), our state must, inter alia, amend the relevant legislation that caused the violation of the European Convention on Human Rights (hereinafter – the Convention).

It should be noted that the focus of both state structures and non-governmental organisations on a well-established, conservative, and, if you will, ‘hackneyed’ range of problems, while seemingly facilitating their swifter resolution (which, as practice shows, unfortunately does not happen), simultaneously hinders the reform of other highly important norms of domestic legislation regulating the process of sentencing and serving sentences.

At the same time, there are significant shortcomings in the relevant national legislation in light of such an international standard as the European Prison Rules (EPR) [1]. In this publication, such compliance will be examined only in relation to restrictions on convicts as a category of the EPR. The equivalent of the term ‘restrictions’ in Ukrainian legal scholarship can be considered the term ‘legal restrictions’ (pravoobmezhennia), which is more specific to domestic criminal executive law and signifies the aggregate of those deprivations and sufferings to which those sentenced to imprisonment are subjected. Although the term ‘restrictions’ is sometimes used in domestic legislation, for example in Part 2 of Art. 51 and Part 1 of Art. 128 of the CEC.

In essence, the requirements of the EPR boil down to the fact that restrictions imposed on those deprived of liberty must be justified. However, the approach to such justification contained in the EPR differs from that of the Convention. Regarding the sphere of sentencing, this can be illustrated as follows.

For example, in the ECHR judgment ‘Hirst v. the United Kingdom’, the Court indicated (para. 69): any restriction on rights must be justified; such justification may be carried out taking into account safety requirements, partly to prevent crime and disorder, and they (the restrictions. – Ch. V.) must be intrinsically linked to the conditions of imprisonment [2]. That is, the aim of such restrictions is safety, the prevention of crime and disorder (a Convention-based approach, enshrined in Part 2 of Art. 8 of the Convention, which states that interference with the exercise of the right to respect for private and family life (which is a restriction of rights) may be carried out, inter alia, for these purposes). Whereas Rule 3 of the EPR speaks of the consistency of restrictions with a ‘legitimate purpose’. That is, the purposes for which restrictions may be imposed are not directly named in the EPR.

Regarding what should be understood by a ‘legitimate purpose’, the following can be said. The Commentary to the EPR, developed by the Committee of Ministers of the Council of Europe, does not provide an answer to this question [3]. For instance, in the case of ‘Dickson v. the United Kingdom’, the Court, in response to the Government’s arguments that the restriction of family life (denial of artificial insemination) pursued a punitive purpose, responded that the development of European penal policy is moving towards increasing the importance of the rehabilitative purpose of punishment (para. 75) [4]. Thus, it did not exclude that the imposition of a restriction may also pursue a punitive purpose. One can probably argue that restrictions may also be imposed for the purpose of rehabilitation (or correction). An analysis of relevant scientific literature, ECHR practice, and international documents provides grounds for asserting that the category ‘legitimate purpose’ is currently an evaluative one, which does not mean that the EPR, as a recommendation, applies exclusively to law enforcement officials, as restrictions are imposed not only by them but also by law-making bodies through the adoption of relevant regulatory legal acts.

If we consider the EPR in more detail, we can note a large number of rules that directly or indirectly establish requirements for the legal restrictions of convicts. Among the so-called basic principles of the EPR are the following: the retention of rights by persons deprived of liberty, the minimality of restrictions, and the proportionality (or appropriateness) of restrictions for such persons. The first principle is reflected in Rule 2: ‘Persons deprived of their liberty retain all rights the deprivation of which was not lawfully ordered by the decision by which they were sentenced or remanded in custody.’ The second and third are in Rule 3: ‘Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed.’

Furthermore, Rule 5 states that life in places of detention should be, as far as possible, similar to the positive aspects of life in society. The established rule contains a principle now known in Europe as the principle of normalisation. Normalisation emphasises the need to bring conditions in prison closer to conditions in open society, which should facilitate the prisoner’s return to society [5; 148].

This rule is reflected in Part 2 of Article 102 of the CEC: ‘The regime in colonies shall minimise the difference between living conditions in the colony and at liberty, which should contribute to increasing the responsibility of convicts for their behaviour and awareness of human dignity’, which is undoubtedly a positive norm, especially if it will be taken into account in the future when establishing various legal restrictions in legislation. Non-compliance with this norm has previously been pointed out by human rights activists and scholars [6; 69].

The principle of normalisation is directly related to the reasonableness of legal restrictions, for in order for life in imprisonment to be as close as possible to the positive aspects of life in society, it is necessary, firstly, that as few legal restrictions as possible be imposed on convicts, and secondly, that these restrictions be minimal. Thus, ensuring the principle of normalisation will also facilitate the implementation of the principles of minimality and proportionality of legal restrictions, and vice versa.

The aforementioned basic provisions are subsequently substantiated. Rule 18.10 states that all prisoners should be accommodated in conditions with minimally restrictive security measures that are justified by the risk of their escape or harm to themselves or someone else. That is, once again, the purpose of establishing such restrictions is slightly different: preventing the risk of escape or harm to oneself or someone else.

To summarise, the main requirement for legal restrictions is minimality. An additional, but also basic requirement is compliance with legitimate objectives, which can, as shown, be different. In fact, consistency with objectives means the ability of a particular legal restriction to achieve a specific goal, the adequacy of the chosen means to a specific established goal, i.e., this is the classic definition of the category of proportionality [7].

Probably the biggest problem that arises when implementing the requirement of minimality of legal restrictions, both in legislation and in law enforcement, is determining what a minimal legal restriction is. To a large extent, this is connected with the lack of relevant expert conclusions and scientific study of the characteristic of minimality as an EPR category, not only in Ukraine but also abroad. That is precisely why it, like the legitimate purpose, can be described as evaluative.

However, this evaluative nature is not an obstacle to establishing the non-compliance of certain norms of the CEC, which enshrine legal restrictions on convicts, with the requirement of minimality. This becomes possible if one applies the logical method of ‘proof by contradiction’. In any case, minimal restrictions are not maximal. And conversely, maximal restrictions are, just as clearly, not minimal. This conclusion is applicable, for example, to Part 3 of Art. 51, according to which those sentenced to arrest are prohibited from visiting relatives and other persons, except for lawyers or other legal professionals who, by law, have the right to provide legal assistance, personally or on behalf of a legal entity; to para. 1 of Part 11 of Art. 134 of the CEC, according to which, while being kept in a disciplinary isolation unit, cell-type room, or solitary confinement cell, convicts are prohibited from visits, purchasing food and necessities, and receiving parcels. The named restrictions are maximal, so they undoubtedly contradict the requirements of the EPR. Let us also add that the total restriction of contacts with the outside world also contradicts Rule 24.2 of the EPR, according to which communication and visits may be restricted or placed under control if necessary for investigation, maintaining order and security, preventing criminal offences, and protecting victims of crimes, but such restrictions, including special restrictions established by a judicial authority, must allow for a minimal level of communication. This rule can also be considered to contain a requirement of minimality for restrictions. Additionally, it specifies the purposes for establishing relevant legal restrictions, which, in essence, boil down to ensuring human safety and facilitating the investigation of certain crimes. However, even if we assume that such objectives are present in relation to those sentenced to arrest, as well as persons serving disciplinary penalties, such as a disciplinary isolation unit or cell-type room (which, in principle, is unlikely, especially regarding those sentenced to arrest, as it is a punishment even milder than imprisonment for a term, during which, nevertheless, visits are allowed), then this norm is also violated, because a minimal level of communication is not ensured. Consequently, one can say with confidence that the named provisions of national criminal executive legislation clearly contradict the EPR recommendations, and sometimes several of its provisions at once.

Hardly minimal are the following restrictions: those sentenced to arrest are prohibited from receiving parcels and postal items, except for parcels containing seasonal clothing (para. 2 of Part 3 of Art. 51 of the CEC); self-governing organisations among those sentenced to life imprisonment are not created (Part 4 of Art. 151), which is a maximal restriction. In addition, according to Part 2 of Art. 151, persons serving life imprisonment are subject to the rights and duties of those sentenced to imprisonment provided for by Article 107 of this Code, and therefore, those sentenced to life imprisonment have the right to participate in self-governing organisations (this right is exactly provided for by Article 107 of the CEC), yet for them, such organisations, as mentioned, are not created.

Also, it is impossible to consider minimal the restriction that consists of the absence of the possibility for persons serving life imprisonment to receive long-term visits. Furthermore, not only is this restriction by no means minimal, but it also violates the right to fatherhood and motherhood, and not only that of the prisoner but also of their partner. The right to establish a family is directly enshrined in Art. 12 of the European Convention on Human Rights. The right to motherhood and fatherhood – in Article 51 of the Constitution of Ukraine, and directly in Part 1 of Art. 49 and Part 1 of Art. 50 of the Family Code of Ukraine. Therefore, this restriction contradicts the Convention, Art. 51 of the Constitution of Ukraine, and Part 1 of Art. 49 and Part 1 of Art. 50 of the Family Code of Ukraine. And again, yet another EPR recommendation is not observed, namely, that visits should be organised in such a way as to give prisoners the opportunity to maintain and strengthen family relationships as naturally as possible (24.4), as it is hardly possible to comply with it in conditions where there is no possibility of a long-term visit. Moreover, shorter ‘conjugal visits’ can be degrading to both partners [3].

It is also appropriate to mention Rule 24.1, which recommends that prisoners be allowed to communicate by post, telephone, or other means of communication with their families, other persons, and representatives of external organisations as often as possible. Obviously, the requirement to allow it as often as possible is aimed at implementing the same principle of minimality that is enshrined in Rule 3 of the EPR, as it entails the maximum narrowing of legal restrictions for prisoners. At the same time, in light of this rule, the existence of Part 6 of Article 51 of the CEC seems unjustified, which provides that for those sentenced to arrest, the right to a telephone conversation with close relatives may (!) be granted in exceptional circumstances.

Apart from the fact that the existence of norms containing legal restrictions that do not meet international standards in Ukrainian criminal executive legislation causes many disadvantageous consequences for our state and legal system, there is another side to the coin.

In the well-known book in scientific circles, ‘Paradoxes of the Prison’, V. G. Khokhryakov indicated that coercion continuing for years cannot but cause protest. It is also strengthened by the fact that isolation is associated with restrictions on satisfying a number of vital needs, and some of them are impossible to fulfil at all. No matter how deeply a person realises, no matter how they direct their consciousness to overcome the protest, dissatisfaction still arises [8; 12]. The cruelty of the prison world is caused not by the properties of criminals, but by the conditions of life in captivity... [8; 97]. Prisoners, contrary to prohibitions, on the verge of mental capacity, try to recreate a familiar environment [8; 138]. An excessive number of rules and the high probability of violations associated with them put prisoners in the position of naughty schoolchildren: they always have something to be punished for [8; 143]. Finally, the administration of penal institutions itself will embody all those restrictions to which convicts are subject [8; 66].

The conclusions that can be reached, summarising everything stated above, confirm the need for legislative changes that would take into account the EPR recommendations. The further existence of the mentioned unreasonable norms of the CEC in their current form will undoubtedly not increase the level of compliance with these norms by both convicts and the administration; it will turn these subjects against each other and further worsen the level of compliance with the rights of convicts in Ukraine, which is already not adequate as of today. It will also create additional psychological pressure, which is not justified directly by the fact of imprisonment, and which, after release, having become a habit, will certainly not help the person return to society.

Vadym Chovhan, volunteer for the Kharkiv Human Rights Protection Group

Literature:

1. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules / [Electronic resource] / Access mode:

https://wcd.coe.int/wcd/ViewDoc.jsp?id=955747#P6_138

2. Hirst v. the United Kingdom (No. 2). Application no. 74025/01, 06 October 2005) / [Electronic resource] / Access mode:

http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=27862&sessionId=79119598&skin=hudoc-en&attachment=true

3. Commentary to recommendation Rec (2006) 2 of the Committee of Ministers to Member states on the European Prison Rules / [Electronic resource] / Access mode:

http://www.coe.int/t/dghl/standardsetting/cdpc/E%20commentary%20to%20the%20EPR.pdf

4. Dickson v. the United Kingdom (Application no. 44362/04, 4 December 2007) / [Electronic resource] / Access mode:

http://cmiskp.echr.coe.int////tkp197/viewhbkm.asp?action=open&table=F69A27FD8FB86142BF01C1166DEA398649&key=28137&sessionId=79117243&skin=hudoc-en&attachment=true

5. Płatek M. The significance of the UN Standard Minimum Rules for the Treatment of Prisoners and the European Prison Rules for the normalisation process / Monika Płatek // Constantly instill conviction: Materials for correctional staff. – Warsaw, 2002. – P. 147–162.

6. Problems of ensuring the rights of convicts in the criminal executive system of Ukraine. / V. A. Badyra, O. P. Bukalov, A. P. Hel, M. V. Romanov, I. S. Yakovets; Under the general editorship of E. Yu. Zakharov. Kharkiv Human Rights Protection Group. – Kharkiv: Human Rights, 2009. – 368 p.

7. Chovhan V. O. Characteristics and significance of the category of proportionality in criminal executive law // Theoretical and practical problems of improving the activities of the criminal executive system of Ukraine [Text] : materials of the All-Ukrainian scientific-practical conference (4 May 2011) – K.: National Academy of Internal Affairs. – 2011. – P. 171–173.

8. Khokhryakov G. F. Paradoxes of the Prison. – M.: Juridical Literature, 1991. – 224 p.