CM(2005)163 Addendum corrigendum 13 December 20051
951 Meeting, 14 December 2005
10 Legal questions
10.8 European Committee on Crime Problems (CDPC) –
a. Draft Recommendation Rec(2005)… of the Committee of Ministers to member states on the European Prison Rules and Commentary
Following the examination of the draft Recommendation by the Rapporteur Group on legal cooperation (GR-J), additional wording has been included in two paragraphs of the Commentary (document CM(2005)163 Addendum). The first one at the request of the Polish delegation and the second at the request of the Danish delegation.
The amendments are contained in:
- the last paragraph of the introduction which appears on page 2 and,
- the last paragraph of the Rule 43 which appears on page 21.
The changes appear in bold.
The Recommendation that contains the new version of the European Prison Rules similarly recognises the contribution of the ECtHR and the CPT. In addition, the Recommendation emphasises that sight must never be lost of the principle that imprisonment should only be used as a last resort, the so-called ultima ratio principle. It seeks to reduce the prison population to the lowest possible level. The desirability of doing this is recognised in Recommendation R (99) 22 Concerning Prison Overcrowding and Prison Population Inflation. This recommendation stresses the importance of using deprivation of liberty only for the most serious offences. The ultima ratio principle should be applied to restrict the detention of both untried and sentenced prisoners. In the case of convicted prisoners serious consideration should be given to alternative sentences that do not entail imprisonment. States should also consider the possibility of decriminalising certain offences or classifying them so that they do not carry penalties of imprisonment.
Since 1987 the European Prison Rules have grown in status. They are now regularly referred to by the ECtHR and the CPT. The new version of the Rules should be of even more assistance to these bodies as they reflect the latest development in best prison practice. National courts and inspecting bodies are encouraged to do the same, not least because the growing transfer of prisoners amongst members states requires that transferring states must have confidence that prisoners will be well treated in the countries to which they are sent.
The present Rules address questions the Rules of 1987 did not consider. They seek to be comprehensive without burdening member-states with unrealistic demands. It is recognised that the implementation of these Rules will require considerable efforts by some Council of Europe member States. The Rules offer guidance to member states that are modernising their prison law and will assist prison administrations in deciding how to exercise their authority even where the Rules have not yet been fully implemented in national law. The Rules refer to measures that should be implemented in “national law” rather than to “national legislation”, as they recognise that law making may take different forms in the member States of the Council of Europe. The term “national law” is designed to include not only primary legislation passed by a national parliament but also other binding regulations and orders, as well as the law that is made by courts and tribunals in as far as these forms of creating law are recognised by national legal systems.
A feature of the new European Prison Rules is that the first nine rules set out the fundamental principles that are to guide the interpretation and implementation of the rules as a whole. The principles are an integral part of the Rules rather than being part of the Preamble or of specific rules. Prison administrations should seek to apply all Rules in the letter and the spirit of the principles.
When deprivation of liberty is used questions of human rights inevitably arise. Rule 1 underlines this truth in the context of requiring respect for prisoners. Such respect in turn demands the recognition of their essential humanity.
This Rule complements Rule 1 by emphasising that the undoubted loss of the right to liberty that prisoners suffer should not lead to the assumption that prisoners automatically lose their political, civil, social, economic and cultural rights as well. Inevitably rights of prisoners are restricted by their loss of liberty but such further restrictions should be as few as possible. These Rules as a whole spell out some steps that can be taken to reduce the negative consequences of loss of liberty. Any further restrictions should be specified in law and should be instituted only when they are essential for the good order, safety and security in prison. Restrictions of their rights that may be imposed should not derogate from the Rules.
One consequence of the increase in the length of sentences in some jurisdictions is that prison administration has to respond to the needs of growing numbers of elderly prisoners. In some countries the recent trend towards mandatory life or long sentences has led to a significant increase in prisoners who will become old in prison. Prison administrations will need to give particular consideration to the different problems, both social and medical, of this group of prisoners. This may require the provision of a range of specialist facilities to deal with the problems arising from a loss of mobility or the onset of mental deterioration.
Special considerations will apply to prisoners who become terminally ill and a decision may have to be made as to whether such prisoners should be released early from their sentences. Any diagnosis made or advice offered by prison medical staff should be based on professional judgment and in the best interests of the prisoner. Recommendation N° R (98) 7 of the Committee of Ministers indicates that the decision as to when such patients should be transferred to outside hospital units should be taken on medical grounds. In a judgment in November 2002 [Mouisel v. France (appl. nr. 67263/01 – 14/11/2002] the European Court of Human Rights found a violation of Article 3 of the ECHR in respect of the medical treatment of a terminally ill prisoner. It noted a positive obligation on the state to offer adequate medical treatment and criticised the fact that the prisoner had been handcuffed to a hospital bed. In another case in October 2003 [Hénaf v. France (55524/00)] the Court found a violation of Article 3 of the ECHR in the treatment of a sick prisoner who had been chained to a hospital bed.
Recommendation No. R (98) 7 of the Committee of Ministers makes reference to the treatment of prisoners who are on hunger strike. It stresses that clinical assessment of a hunger striker should only take place with the express permission of the patient unless there is a severe mental disorder, which requires transfer to a psychiatric service. Such patients should be given a full explanation of the possible harmful effects of their action on their long-term well-being. Any action that the medical practitioner (doctor) takes must be in accordance with national law and professional standards.
Medical practitioners or qualified nurses should not be obliged to pronounce prisoners fit for punishment but may advise prison authorities of the risks that certain measures may pose to the health of prisoners. They would have a particular duty to prisoners who are held in conditions of solitary confinement for whatever reason: for disciplinary purposes; as a result of their “dangerousness” or their “troublesome” behaviour; in the interests of a criminal investigation; at their own request. Following established practice, (see for example Rule 32.3 of the UN Standard Minimum Rules for the Treatment of Prisoners) such prisoners should be visited daily. Such visits can in no way be considered as condoning or legitimising a decision to put or to keep a prisoner in solitary confinement. Moreover, medical practitioners or qualified nurses should respond promptly to request for treatment by prisoners held in such conditions or by prison staff as required by para. 66 of Recommendation N° R (98) 7 on ethical and organisational aspects of health care in prison.
Rules 44 and 45
These two Rules address the medical practitioner’s duties to inspect and to advise upon the conditions of detention. The conditions under which prisoners are detained will have a major impact on their health and well-being. In order to meet their responsibilities, therefore, prison administrations should ensure appropriate standards in all those areas that may affect the health and hygiene of prisoners. The physical conditions of the accommodation, the food and the arrangements for hygiene and sanitation should all be designed in such a way as to help those who are unwell to recover and to prevent the spread of infection to the healthy. The medical practitioner has an important role to play in checking that the prison administration is meeting its obligations in these respects. When this is not the case, the medical practitioner should draw this to the attention of the prison authorities. Recommendation N° R (98) 7 of the Committee of Ministers notes that the ministry responsible for health has a role to play in assessing hygiene in the prison setting.
Health care provision
This Rule requires the prison administration to ensure that it has, in addition to facilities for general medical, dental and psychiatric care, suitable arrangements in place to provide specialist consultation and in-patient care. This will require a close link between the prison and the medical services in civil society since it is
unlikely that prison health care services will themselves be able to make adequate arrangements for the full range of specialisms. In planning for specialist care particular attention should be given to the needs of vulnerable groups, especially women and older prisoners.
Note 1 This document was classified restricted at the date of issue. It was declassified at the 952nd meeting of the Ministers’ Deputies (11 January 2006) (see CM/Del/Dec(2006)952/10.2).