CM(2012)7 31 January 20121
1137 Meeting, 14 March 2012
10 Legal questions
10.2 European Committee on Crime Problems (CDPC) –
a. Abridged report of the 61st plenary session (Strasbourg, 6-9 December 2011)
b. Draft Recommendation of the Committee of Ministers to member States on the European code of ethics for prison staff
Item to be prepared by the GR-J on 21 February 2012
The European Committee on Crime Problems (CDPC) met in Strasbourg from 6-9 December 2011.
Items submitted to the Committee of Ministers for decision
1. The CDPC invited the Committee of Ministers:
a. to examine and adopt the draft Recommendation of the Committee of Ministers to member States on the European Code of Ethics for Prison Staff (see Appendix III).
Items submitted to the Committee of Ministers for information
2. The CDPC invited the Committee of Ministers to note that:
a. the CDPC took note of the information provided by Jan KLEIJSSEN, Director of the Information Society and Action Against Crime Directorate, on the on-going reform process of the Council of Europe and in particular the new rules concerning working methods of intergovernmental committees and the recent restructuring of the Secretariat (see item 1 of the Agenda);
b. the CDPC took note of the summary meeting report of the first plenary PC-CP meeting (8-10 November 2011) and of the oral information provided by its Chair regarding the work of this committee. The CDPC examined and finalised the draft European Code of Ethics for Prison Staff (c.f. item 1.a above) and noted that this instrument, which has been prepared by the PC-CP, is a very valuable model to serve member States in drafting their own codes on prison staff ethics. The CDPC furthermore examined the draft recommendation concerning foreign prisoners, as approved by the plenary meeting of the PC-CP in November. The CDPC came to the conclusion that, despite the substantive work realised so far by the PC-CP, more needs to be done in order to finalise the draft and to duly take account of the additional comments made by the CDPC delegations at the present meeting. In particular, the CDPC agreed on a revised working version of the scope and definitions of the draft recommendation and gave additional instructions to the PC-CP to amend the text (see item 3a of the Agenda);
c. the CDPC took note of the follow-up given to Resolution No. 2 “Prison Policy in Today’s Europe” adopted by the 30th Council of Europe Conference of Ministers of Justice and more specifically of the fact that five out of the seven follow-up activities approved by it have been successfully carried out. It then discussed possible next steps, including a possible future conference involving ministries of justice, judges, prosecutors, representatives of prison and probation services, in order to discuss ways of combating prison overcrowding and of improving social reintegration of prisoners. It decided that in view of the budgetary restrictions and current economic crisis in Europe, it would seem more appropriate for the year 2012 to hold a
small-scale meeting of the chairs and other representatives of the Council of Europe bodies, the CDPC, the CEPEJ, the CCJE, the CCPE, the PC-CP and the NGO European Organisation on Probation (CEP), with the participation of renown scientific experts working in the field, in order to have a discussion of the measures which might be taken in this respect, including, as it may appear to be appropriate in the future, of holding a high-level European conference on the subject matter (see item 3c of the Agenda);
d. the CDPC took note of the conclusions adopted at the 16th Conference of Directors of Prison Administration (CDAP) with the participation of Directors of Probation Services (Strasbourg, 13-14 October 2011) and of the specific proposals made by the Conference, namely to draft an ethical framework on the use of electronic monitoring, to create an electronic platform for exchange of best practices in respect of prison and probation services and to draft a European Code of Ethics for Probation Staff. It further took note of the general consensus expressed by the participants to the CDAP regarding the leading role of the Council of Europe in the prison field and of the need to improve the implementation of its standards by the national authorities by exchanging good practices and by creating appropriate networks. It also took note that there was no consensus among participants regarding the feasibility and need for a binding legal instrument on prisons (see item 3d of the Agenda);
e. in the light of the 16th CDAP conclusions, the CDPC decided that the work on electronic monitoring should be given priority and, in order to set the scope of this work, instructed the Secretariat to invite an expert in the field to present a report on this subject at its next plenary meeting with a view on developing a specific proposal to the Committee of Ministers on the follow-up to be given to the CDAP conclusions. Regarding the setting up of an electronic platform for exchange of best practices, the CDPC supported the idea and asked the Secretariat to consider possibilities of implementation. Regarding the drafting of Code of Ethics for Probation Staff, it was decided to postpone this work to a later time (see item 3d of the Agenda);
f. the CDPC elected Ms Alina BARBU (Romania), Mr Harald FØSKER (Norway), Mr Jörg JESSE (Germany) and Mr Mauro PALMA (Italy) as members of the PC-CP to replace the four outgoing members of the PC-CP (see item 3e of the Agenda);
g. the CDPC took note of the report by Mr Per HEDVALL, Chair of the PC-OC, concerning the ongoing and future activities of PC-OC and held an exchange of views thereon (see item 4 of the Agenda);
h. the CDPC examined a document on the proposed scope of work on dangerous offenders. It decided to instruct the Secretariat, taking into account the outcome of discussions in the Committee on the scope of the instrument, to prepare draft terms of reference for a restricted drafting group of experts to be circulated to and agreed by the CDPC delegations by written procedure before being submitted to the Committee of Ministers for adoption (see item 5 of the Agenda);
i. the CDPC examined its new terms of reference for the period 2012-2013 as adopted by the Committee of Ministers. It took note of the information provided by the Secretariat with regard to the reform process in the Council of Europe and its possible impact on the future activities and working methods of the Committee. With regard to the representation of the CDPC in meetings of other Committees, the CDPC instructed the Secretariat to inform the Chair and the Bureau about the agendas for meetings of other Committees, where it could be relevant for the CDPC to be represented. It instructed the Bureau to decide on a case-by-case basis, if and how representation in such meetings could be assured;
j. as regards possible future activities, the CDPC held an exchange of views and decided to instruct the Secretariat to contact delegations, which had expressed an interest in working on the topic of “criminal prosecution of suspected pirates” (proposed by the Russian Federation) with a view to determining a possible format for such work. The CDPC, in accordance with the position taken by the Committee of Ministers on the involvement of the Council of Europe in activities related to sea piracy, at the same time decided not to engage in any major activities in this respect and limit, for the time being, its possible work to the exchange of best practices. The Committee instructed the Secretariat to report back to the CDPC for further discussions at its next Plenary. Likewise, the CDPC decided to instruct the Bureau to make a proposal for work on the topic of “alternative measures to imprisonment” (e.g. therapeutical measures) (proposed by Belgium) and present it to the CDPC Plenary at its next meeting;
k. the CDPC elected Mr Lorenzo SALAZAR (Italy) as Chair, Mr Jesper HJORTENBERG (Denmark) as Vice-Chair. It also elected Mr Sławomir BUCZMA (Poland), Mr Ebrima CHONGAN (United Kingdom), Mr Hans-Holger HERRNFELD (Germany) and Ms Fabienne SCHALLER (France) as members of the Bureau (see item 6 of the Agenda);
l. the CDPC took note of the information provided by the Austrian delegation concerning the 31st Council of Europe Conference of Ministers of Justice (Vienna, September 2012) and endorsed the proposed theme of the Conference: “Responses of Justice to urban violence” (see item 7 of the Agenda);
m. the CDPC examined a document on possible activities to be undertaken under the aegis of the CDPC in respect of transnational and organised crime and expressed its strong support for the Council of Europe taking up this task. It decided to instruct the Secretariat to prepare draft terms of reference of a restricted group of experts for its approval before being submitted to the Committee of Ministers (see item 8 of the Agenda);
n. the CDPC decided to examine the draft opinions prepared by the Secretariat following instructions/indications provided by the Bureau at its last meeting in October 2011 on three Parliamentary Assembly recommendations, to approve them with amendments and to instruct the Secretariat to transmit them to the Committee of Ministers. The recommendations in question are on: 1) combating “child abuse images” through committed, transversal and internationally co-ordinated action; 2) violent and extreme pornography and 3) abuse of state secrecy and national security as obstacles to parliamentary and judicial scrutiny of human rights violations (see item 9 of the Agenda);
o. the CDPC took note of the information provided by the Secretary to the T-CY as regards the discussions of the T-CY on that Committee’s opinion on accession by non member States to the Budapest Convention and, in particular, the concerns raised by the T-CY regarding the compatibility of the procedures for providing advice to the Committee of Ministers concerning requests for accession by non-member States proposed by the two Committees. However, the CDPC considered that, due to its particular position as steering body in the criminal law field, notably its role to consider the situation concerning the participation of non-member States also in other criminal law conventions which may have relevance for the effective implementation of the Budapest Convention, the Committee of Ministers should always be provided with the opinion of the CDPC on the request for accession by a non-member State to any criminal law convention, in addition to the possible opinion provided by relevant committees of the Parties. Consequently, the CDPC decided to submit its own opinion without further amendments to the Committee of Ministers (see item 10 of the Agenda).
3. The CDPC took note of:
the fact that this was the last meeting in which Mr Roland MIKLAU (Austria) participated as a member of its Bureau and expressed its gratitude to him for his many important contributions to the work of the CDPC over a period of four decades.
4. The CDPC decided to hold its next meeting from 29 May to 1 June 2012.
5. The CDPC invited the Committee of Ministers to take note of this report as a whole.
Draft Recommendation CM/Rec(2012)… of the Committee of Ministers to member States on the European code of ethics for prison staff
The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,
Recalling that the aim of the Council of Europe is to achieve greater unity between its members;
Bearing in mind that it is also the purpose of the Council of Europe to promote the rule of law, which constitutes the basis of all genuine democracies;
Considering that the criminal justice system plays a key role in safeguarding the rule of law and that prison staff have an essential role within that system;
Having regard to the European Convention on Human Rights (ETS No. 5) and the case law of the European Court of Human Rights;
Having regard also to the work carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and in particular the standards it has developed in its general reports;
Reiterating that no one shall be deprived of liberty save as a measure of last resort and in accordance with a procedure prescribed by law;
Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and good order, while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes for prisoners, thus preparing them for their reintegration into society;
Considering it important that Council of Europe member States continue to update and observe common principles regarding their prison policies;
Considering, moreover, that the observance of such common principles will enhance international co-operation in this field;
Considering that the achievement of a number of the objectives of the prison service depends on public involvement and co-operation and that the efficiency of the prison service is dependent on public support;
Noting the significant social changes which have influenced important developments in the penal field in Europe over the last two decades;
Endorsing once again the standards contained in the recommendations of the Committee of Ministers of the Council of Europe, which relate to penitentiary policy and practice, and in particular:
– Recommendation No. R (89) 12 on education in prison;
– Recommendation No. R (93) 6 concerning prison and criminological aspects of the control of transmissible diseases including Aids and related health problems in prison;
– Recommendation No. R (97) 12 on staff concerned with the implementation of sanctions and measures;
– Recommendation No. R (98) 7 concerning the ethical and organisational aspects of health care in prison;
– Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation;
– Recommendation Rec(2003)22 on conditional release (parole);
– Recommendation Rec(2003)23 on the management by prison administrations of life sentence and other long-term prisoners;
– Recommendation Rec(2006)2 on the European Prison Rules;
– Recommendation Rec(2006)13 on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse;
– Recommendation CM/Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures;
Bearing in mind the United Nations Code of Conduct for Law Enforcement Officials, the United Nations Standard Minimum Rules for the Treatment of Prisoners and the United Nations Standard Minimum Rules for the Treatment of Women Prisoners and Non-custodial measures for Women Offenders (the Bangkok Rules);
Considering the need to recommend common European principles and guidelines for the overall objectives, performance and accountability of prison staff to safeguard security and the rights of individuals in democratic societies governed by the rule of law;
Recommends that the governments of member States be guided in their internal legislation, practice and codes of conduct for prison staff by the principles set out in the text of a model European Code of Ethics for Prison Staff, appended to the present recommendation, which should be read in conjunction with the European Prison Rules;
Further recommends that governments of member States give the widest possible circulation to this text and codes of ethics based upon it, and oversee their implementation by appropriate bodies.
Appendix to Recommendation CM/Rec(2012)…
I. Definition of the scope of the code
This code applies to prison staff at all hierarchical levels.
In this code the term “prison” is used to describe institutions reserved for holding persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction.
Nothing in this code should be interpreted as precluding the application of any relevant international human rights instruments and standards, especially the European Prison Rules as well as other professional codes of ethics applicable to specialised groups of staff.
II. Objectives of prison staff
1. The main objectives of prison staff in a democratic society governed by the rule of law shall be to:
- carry out all their duties in accordance with national law and international standards;
- protect and respect the fundamental rights and freedoms of individuals as enshrined, in particular, in the European Convention on Human Rights;
- ensure that all prisoners are safe and held in conditions that comply with relevant international standards, and in particular the European Prison Rules;2
- respect and protect the right of the public to be safeguarded from criminal activity;
- work towards the social reintegration of prisoners on release, by providing them with the opportunity to use their time in prison positively.
III. Prison staff and the criminal justice system
2. Prison staff shall have roles and duties different from those of the police, the military, the prosecution and the judiciary in respect of prisoners.
3. Prison staff shall co-operate appropriately with relevant institutions of the criminal justice system, including with probation services, where they exist.
IV. Guidelines for prison staff conduct
4. Prison staff at all levels shall be personally responsible and accountable for their own actions or omissions or for orders to subordinates; they shall always verify the lawfulness of their intended actions.
5. Prison staff shall maintain and promote high standards of personal honesty and integrity.
6. Prison staff shall maintain positive professional relationships with prisoners and members of their families.
7. Prison staff shall not allow their private, financial or other interests to conflict with their position. It is the responsibility of all prison staff to avoid such conflicts of interest and to request guidance in case of doubt.
8. Prison staff shall oppose all forms of corruption within the prison service. They shall inform superiors and other appropriate bodies of any corruption within the prison service.
9. Prison staff shall carry out instructions properly issued by their superiors, but they shall have a duty to refrain from carrying out any instructions which are clearly illegal and to report such instructions, without having to fear sanctions.
C. Respect for and protection of human dignity
10. Prison staff shall at all times respect and protect everyone’s right to life.
11. In the performance of their daily tasks, prison staff shall respect and protect human dignity and maintain and uphold the human rights of all persons.
12. Prison staff shall not inflict, instigate or tolerate any act of torture or other inhuman or degrading treatment or punishment, under any circumstances, including when ordered by a superior.
13. Prison staff shall respect and protect the physical, sexual and psychological integrity of all prisoners, including against assault by fellow prisoners or any other person.
14. Prison staff shall at all times treat prisoners, colleagues and all other persons entering prison with politeness and respect.
15. Prison staff shall only interfere with individual’s right to privacy when strictly necessary and only to achieve a legitimate objective.
16. Prison staff shall not use force against prisoners except in self-defence or in cases of attempted escape or active or passive physical resistance to a lawful order, and always as a last resort.
17. Prison staff shall carry out personal searches only when strictly necessary and shall not humiliate prisoners in the process.
18. Prison staff shall use instruments of restraint only as provided for by Rule 68 of the European Prison Rules. In particular they shall never use them on women during labour, during birth and immediately after birth.
D. Care and assistance
19. Prison staff shall be sensitive to the special needs of individuals, such as juveniles, women, minorities, foreign nationals, elderly and disabled prisoners, and any prisoner who might be vulnerable for other reasons, and make every effort to provide for their needs.
20. Prison staff shall ensure the full protection of the health of persons in their custody and, in particular, shall take immediate action to secure medical attention whenever required.
21. Prison staff shall provide for the safety, hygiene and appropriate nourishment of persons in the course of their custody. They shall make every effort to ensure that conditions in prison comply with the requirements of relevant international standards, in particular the European Prison Rules.
22. Prison staff shall work towards facilitating the social reintegration of prisoners through a programme of constructive activities, individual interaction and assistance.
E. Fairness, impartiality and non-discrimination
23. Prison staff shall respect plurality and diversity and not discriminate against any prisoner on the basis of sex, age, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status, or the type of offence alleged or committed by that prisoner. Prison staff shall pay particular attention to the provisions of Rule 29 of the European Prison Rules.
24. Prison staff shall take full account of the need to challenge and combat racism and xenophobia, as well as to promote gender sensitivity and prevent sexual harassment of any form both in relation to other staff and to prisoners.
25. Prison staff shall carry out their tasks in a fair manner, with objectivity and consistency.
26. Prison staff shall respect the presumption of innocence of prisoners who have not been convicted or sentenced by a court.
27. Prison staff shall apply objective and fair disciplinary procedures as provided for by the European Prison Rules.3 Moreover, they shall respect the principle that prisoners charged with a disciplinary offence shall be considered innocent until proven guilty.
28. Prison staff shall ensure that prisoners can exercise their right to have regular and adequate access to their lawyers and families throughout their imprisonment.
29. Prison staff shall facilitate co-operation with governmental or non-governmental organisations and community groups working for the welfare of prisoners.
30. Prison staff shall promote a spirit of co-operation, support, mutual trust and understanding among colleagues.
G. Confidentiality and data protection
31. Information of a confidential nature in the possession of prison staff shall be kept confidential, unless the performance of duty or the needs of justice strictly require otherwise.
32. Particular attention shall be paid to the obligation to respect principles of medical confidentiality.
33. The collection, storage, and use of personal data by prison staff shall be carried out in accordance with data protection principles and, in particular, shall be limited to the extent necessary for the performance of lawful, legitimate and specific purposes.
34. Prison staff shall respect the present code. They shall also, to the best of their capability, prevent and rigorously oppose any violations of it.
35. Prison staff who have reason to believe that a violation of the present code has occurred or is about to occur shall report the matter to their superior authorities and, where necessary, to other appropriate authorities.
1 This document has been classified restricted until its examination by the Committee of Ministers.
2 Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European prison rules (adopted by the Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers' Deputies).
3 Rules 56-63.