EMPRISONMENT AND HUMAN RIGHTS
Société européenne de culture
Summer School 2011 San Servolo
Imprisonment and the question of the human rights has become a very important topic to day.
There are 600.000 detainees in the European Union, 1, point 2 million in the 47 Member States of the Council of Europe, 30 million in the world ; this considerable number of people cannot be ignored.
This number of detainees corresponds to a strong demand on the part of the public opinion mainly because there is a growing feeling of insecurity due to the terrorist context since 2001 but due also to the growing number of unemployed young people without any professional qualification and family support. Useless to say also that the medias blow up any criminal act and also increase by doing so the feeling of insecurity.
At last the question of imprisonment has become a political challenge exploited by the right and extreme right political parties for their own interest. For all these reasons judges are inclined to privilege imprisonment to other forms of sanction.
I shall concentrate on the situation within the European Union having of course in mind the various instruments either national, European or from other international sources which contribute to the respect of human rights.
I shall successively treat :
- the excessive use of imprisonment
- the very often very poor conditions of imprisonment
- the purpose or sense of penal sanction and the alternatives to imprisonment
I. The excessive use of imprisonment
1. The international context of the fight against terrorism
Security has always been the responsibility of the State, a civic concern and a fundamental right. Nevertheless since the events of September 2001, this concern for security has reached excessive proportions never experienced before.
I have only to remind you how a great democracy like the US, because of this concern for security has violated its own values by introducing in its legislation -the Patriot Act- concepts like that of “the illegal combatant” (that is to say persons, in the case of presumed terrorists, soldiers, deprived of any right even linked to the status of soldier at war).You will remember too the absence of any legal status for the detainees on the island of Guantanamo : no access to a lawyer, a doctor, no possibility to inform their families, no information about the reason of their detention and its duration) and the practice of torture which the US government itself has finally recognized.
Such an incredibly harsh treatment coming from this supposed great democracy the US has broken a taboo as far as the respect for fundamental rights is concerned.
Europe has followed the US “example”. In Germany an old Nazi law of 1933 allowing internment for security reasons, which had fallen in disuse without having never abrogated has been reimplemented with the approval of the Constitutional Court of Karlsruhe. The UK authorities have adopted very repressive laws allowing for imprisonment of foreigners (till the European Court for human rights declared these laws contrary to the European Convention especially article 15 allowing alleviation of human rights implementation only in time of war,) ; in England courts also have for a while considered proofs obtained outside Europe under torture (till the UK supreme Court The Chamber of Lords condemned it).
In general the terrorist events of 2001 have accelerated, in a repressive way, the harmonization of penal law within the EU. For instance we could mention the adoption of the European arrest warrant, the establishing of black lists leading to the freezing of funds, the arbitrary interdiction to leave the territory for persons suspected of connexions with terrorism who cannot even express their defence.
One has even established a suspect cooperation between the investigation and police services of some member States of the EU and the CIA which led to suspects of terrorism being sent to countries known for their use of torture after transiting in secret places in Europe. The Council of Europe has been among the first to identify and denounce these practices (rapport Marty). One must mention also the very dangerous cooperation between EU and the US on personal data exchanges.
2. The extension of the concept of dangerosity
In the case of France and other countries, one observes a disturbing change in penal law based till now on the concept of guilt linked to sanction and reinsertion .Now even to be potentially dangerous gives grounds for sanction, for imprisonment. There is now in recent laws in France for instance confusion between the offence and any sort of deviance. Instead of considering that the human being is free and responsible, he is now considered as predestined in a certain way. In such a conception, to claim to be able to forecast recidivism is to renounce to the principle of free will which is the basis of responsibility. As said a well known jurist Mrs Delmas Marty recently : it is not somebody responsible for a crime who is condemned but somebody who is neutralized as one does with a dangerous animal ; it is a double sanction.
Such an attitude is to be noticed in a recent law adopted in 2008 according to which a person even after serving her or his sentence might be kept into detention because of her /his dangerosity.
Mentally ill persons can be interned on the sole basis of their sole material culpability. Is it so easy to establish somebody’s criminal dangerosity ? The person interned according to this principle will certainly not be able to prove the contrary. The principle of dangerosite excludes a priori any possibility of judicial error. If decreed dangerous a mentally ill person must sometimes face an unlimited period of internment as such a decision can be renewed from year to year by an ad hoc committee.
The same attitude prevails to day more and more for minors. Till now the principle has been that minors benefited from not being judged fully responsible because they were considered as at least partially lacking the capacity of distinguishing good from evil. According to new laws in France this attenuation of responsibility in the case of minors can now be ignored without reasons given. In the same way the level of responsibility of minors is being constantly lowered (12 years).The fear for recidivism is such that the concept of adaptation of the sanction to the specificity of the person is forgotten and replaced by minimum sanctions.
Finally foreigners now appear to be in the forefront of this dangerous population which must be strictly controlled. Interconnexions of data systems, numerous to day, aid this process. Consequently migrants without papers are too often imprisoned for weeks , months in retention camps even though they have committed no crime at all but just an administrative offence.
3. The consequent overcrowding of prisons
In most Member States of the EU, this search for security at any price leads to a demand for more and more imprisonment on the part of the public, the government, political parties. Consequently judges who feel at risk of committing an error or of being too lenient react very strictly .
Main rates of imprisonment in the EU are the following (2009 statistics from the Council of Europe) :
- Rates per 100.000 inhabitants Nordic Countries less than 50 ; France 114 ; Spain 138 ; Poland 220 ; Lithuania 264 ; Russia 620 .
- Overcrowding rates are Nordic Countries 100 for 100 places while in France 115 ; Italy148 ;Spain 158.
In France and other countries many laws have been adopted these last years which increase the length of imprisonment in order to fight against recidivism. At first it seems a good way to solve this problem and to satisfy the public opinion. In reality statistics show that there is more recidivism which occurs with relatively short time imprisonment (less than a year average 17 % in the EU) than with long imprisonment sentences (10 years and more). It appears also that there is less chance of recidivism when the persons have a stable affective environment, professional training and are confirmed adults. These statistics show the contradiction between increasing the imprisonment sanctions and its consequences on recidivism.
Not only persons suspected of terrorism, mentally ill persons, minors, migrants have suffered from this excessive recourse to imprisonment ; it has become a common practice in the everyday practice of justice, at all levels.
a) before sentencing
The number of people in custody (800.000 each year in France ) or people in preventive detention (30 % in France) has greatly increased these last years in some Member States ( France +30 % ; Greece+44 % ; Poland + 27 % ; the Netherlands+14 %) .
Detainees in such cases do not always benefit from the three minimum conditions to their detention fixed by the CPT : access to a lawyer at the vey beginning of the detention, access to a doctor ; right to inform their family and friends.
Custody and preventive detention duration vary considerably from Member State to Member State.
For instance custody duration varies from 48h in Germany and France to 72h in Spain and 5 days incommunicado when it is question of fight against terrorism, 96h in Italy, while the maximum is only 24h in Belgium and UK.
In the case of preventive imprisonment the average duration varies enormously from country to country leading to large differences in percentage of pre trial detainees compared to the whole prison population : from10 % in the Czech Republic, 15 % in Germany 27 % in France, Greece up to 43 % in Italy.
Preventive detention ought to be used only when there is a risk of escape by the suspect, a danger of serious infraction, disappearance of proofs. Such a practice leads inevitably to unjust sentences. Even when there are strong reasons for preventive detention, in the context of terrorism for instance in France, the limit of 4 years is far too excessive.
b) After sentencing
According to statistics published by the Council of Europe on the percentage of people imprisoned, 14 members States are above the average of 109 detainees/per10.000 inhabitants : especially Greece, Rumania, Spain, Luxembourg, Malta, Bulgaria, Hungary, the highest score being 264 % in Lithuania.
Not only in many member States the preferred sanction is imprisonment but also during imprisonment there is little hope of alleviations of their sanction for prisoners.
II. The very often poor conditions of imprisonment which implies the failure of the system of imprisonment
The overcrowding of prisons affects of course the implementation of human rights. Detainees ought to suffer only from deprivation of their freedom and no more. It is far from being the case and often fundamental rights are affected. Let us consider their various fundamental rights, that is to say the right to dignity, to family life, to freedom of expression and to citizenship.
1. The implementation of fundamental rights of detainees
a) the right to dignity
The detainee should not suffer with regard to his dignity because he is a prisoner. The Council of Europe has established a certain number of rules to be observed and which are regularly up dated. Without examining all of them let us mention the most important such as :
– the right to an individual cell. This is far to be the case when we consider the overcrowding of prisons in most countries. A corollary of this situation is the increase of violence both among detainees and between detainees and guards.
– a minimum area for every detainee -9m2 per person- as well as sufficient ventilation, heating, hygiene (facilities such as the possibility to take regular showers and separate toilets. Body searches, especially when they are systematic, are also considered to be contrary to the dignity of the person. Neither should the detainee be subject to arbitrary decisions of the administration : when he/she is sentenced to a disciplinary sanction the detainee should have the opportunity to appeal against it.
b) the right to keep family and friend relationships
Keeping these links is very important for the detainee especially in view of his/her reinsertion in normal life later on. That is why it should be possible to keep in touch either through visits or telephone calls.
It must be said that the deprivation of all affective and sexual relations in the case of long sentences can appear contrary to human dignity.
In general the detainee should have the possibility to remain in contact with the exterior world (TV at a reasonable rental price, possibility to see prison visitors or/and a representative of the religion of his/her choice).
c) the right to health access
It is not because a person is imprisoned that his /her health should be neglected. In this field the State has a positive responsibility towards the detainee because we should not forget that the prison is a public service.
Recent judgments by the Human rights Court of Justice demonstrate this requirement. Let me give you some examples where Member States have been recently condemned :
– for not conducting a seriously ill detainee to an hospital as quickly as possible
– for leaving alone and without constant supervision a detainee known to be very mentally disturbed and in subsequent danger of committing suicide (80 suicides per year in France)
– the use of electrical impulse arms in prisons to implement order.
We must not forget also the problems of extreme illness and old age in prisons.
d) the right to work and to benefit from education.
The detainee should have the opportunity to work and to learn. In the case of the right to work one observes in many cases a lack of possibilities to work ; detainees have to put their names on a waiting list. Their remuneration is much below the minimum wage even when one considers that detainees are fed and lodged free from charge.
The same applies in the need to education, such a vital field if one considers that most of the detainees are illiterate and if we realize the importance of acquiring a professional competence for their reinsertion and general culture for the quality of their future life. In the present situation of overcrowding there are no sufficient means in terms of libraries, teaching programs without speaking of the absolute impossibility to study in overcrowded cells.
e) the right to collective expression.
One of the reasons for violence in prisons is the absence of the opportunity to speak. In principle granting the right to collective expression to detainees is feared by the prison administration which is focused on security. This is very important . Nevertheless rule 50 of the European penitential rules recognizes the right for detainees to debate collectively about questions of common interest. This possibility has been recognized too by the recent French penitential law. In 1983 a former French Minister for Justice Robert Badinter introduced the right for detainees to create cultural and sport associations.
In several countries (Belgium, Denmark, Finland, Netherlands and Sweden) such possibilities of collective expression improve the climate within prisons and help detainees to go beyond a context of constant assistance, passivity and being treated as children.
2 Vulnerable groups
Some vulnerable groups require special attention when imprisoned.
a) Women
Even if women represent generally no more than 5 % of the prison population, this percentage increases in some countries (Cyprus 410 % ; UK 178 %).
It is obvious that women require specific measures especially when they are pregnant. Then they need a prenatal and post natal follow up, the creation of special units mothers/children within prisons. One must also make sure that women do not suffer from discrimination in the field of work or access to professional training knowing the difficulties women face when leaving prison (monoparental families).
b) Children
In France the recent evolution is to lower the age of full responsibility in order to answer the consequences of a supposed dangerosite on the part of young minors. On the contrary countries like Germany and Spain there is a debate at the moment about the opportunity to heave the threshold of majority from 18 years old to 21.
To lower too much the threshold of penal majority is contrary to the principle of specialty of the justice for minors.
c) Migrants
As I have already mentioned illegal migrants are too often arrested and kept in retention camps , that is to say sort of prisons close to airports where they do not benefit often of the minimum legal guaranties. Unjust also are the conditions of life in these camps for persons who have committed no infraction at all except to be foreigners without administrative papers.
d) Ill and aged persons
It is worth mentioning the high % of old persons in prisons (over 60 : 2100 in Italy ; 1700 in Germany ; and over 70 2600 in France without speaking of detainees aged more than 80
Mentally ill persons especially should be treated in hospitals and not sent to prisons.
3 The failure of the penal system
As it is, that is to say a regime mainly based on imprisonment, the penal system at work in the EU fails mainly because it doesn’t prevent recidivism. To deprive somebody of freedom ought not to lead to the deprivation from dignity and hope for the detainee. And I would say that in spite of the often effective attempts of the administration to improve the situation in many cases.
III. The “raison d’être” or sense of penal sanction and the alternatives to imprisonment
One can distinguish four penal models :
- the retributive system based mainly on revenge exerted by the State and elimination of the criminal
- the utilitarian system based on responsibility of the guilty person and neutralization(imprisonment)
- the rehabilitation model based mainly on the individual, his/her responsibility and reinsertion
- finally the restaurative model based on the collective dialogue between the condemned and the victim in view of rebuilding the social harmony.
These three last models are in fact complementary while the first has become archaic.
The main trend to day is to restrict imprisonment and, when possible, to substitute alternatives. We will consider the various alternatives according their place before, during and after the sentence.
1. The alternatives to imprisonment
a) during the pre- sentencial phase.
– Penal mediation ( that is to say the agreement between the guilty person and the victim ). Known in the US since 1970, penal mediation came into force in the EU in the 90s. This alternative to imprisonment consists in getting together the guilty person and the victim in order to reach an agreement (in France this alternative to sentence is used mainly in the case of marital violence or no representation of child). Far from being easy penal mediation can be very hard for the culprit of the offence but satisfactory for the victim who often wants to know more . In Belgium penal mediation can be applied at all phases of the procedure provided the parties and the public prosecutor agree and with the help of a facilitator.
– Judicial control as an alternative to preventive imprisonment. Decree by a judge judicial control consists instead of sending a person to prison- in compelling him/her to a certain number of restrictions such as for instance placing under house of arrest, wearing an electronic tag, bailing or following socio-educative measures to prevent the commitment of the offence. It is a pity that judicial control is not more used for it prevents imprisonment and its regrettable effects in most cases. It is worth mentioning that in France for instance the average cost of judicial control is 1800 Euros while in prison it can reach 20.000 Euros.
b) during the sentencial phase
Alternatives to imprisonment during this phase concerns people sentenced for 10 years imprisonment at the maximum. But these alternatives are to day, in France at least, not so used because of the immediate appearance process into force since the 90 to combat the feeling of inefficiency of justice. The result is that such a process limits by its own nature the chances to look for alternatives (lack of time for the judge and the barristers).
Among these alternatives let us mention :
– the suspended sentence ( the guilty person is for instance obliged to answer regular summons by the judge, to follow medical treatment or a professional training course). In France in the case of recidivism for the third time it is no longer possible to benefit from a suspended sentence.
– Postponement of the sentence. In this case the person is sentenced the implementation of the sentence is postponed provided of course that the guilty person proves that the harm caused to the victim has been repaired, that he/she is reinserted. For example if the guilt person is a drug addict that has agreed to treatment or if has stolen a car that he has reimbursed the victim. However such a procedure requires two judgments which can be a reason for not being very much applied.
– Work in the common interest. Instead of being sentenced to imprisonment the author of the offence can be sentenced to a certain number of hours , weeks, months to provide for the benefit of a public administration or for a charity institution a benevolent work. If the terms of such a sentence are not respected the guilty person will of course be sentenced to a definite term of imprisonment (2000 TIG in France) ;
– A financial sanction (diminished of 20 % if the guilty person pays within a month) or financial sanctions calculated in days (360 maximum) considering the means and responabilities of the defendant.
– Other alternatives exist. For example according to a French law of 2004 the interdiction to visit some persons or definite places such as casinos, the confiscation of the driving licence or the mobile phone. But in general these alternatives require additional means (finances and staff to control their implementation).
c) Post sentencial alternatives.
Even during imprisonment it is still possible to modify the sentence for instance :
– a three days leave can be granted to the prisoner by the administration days for family reasons or when he has accomplished half of his sentence in prison or in the case he or she is sentenced to less than five years imprisonment.
– He can also be granted the permission to work or for vocational training outside the prison .This alternative to imprisonment is especially adapted for detainees so that they can be reinserted in society. Less than 2 % of detainees in France benefit from this alternative which requires of course staff, housing shelters etc. This is a pity for, besides being very focused on reinsertion in society, this alternative is inexpensive compared to the cost of building new prisons (for instance building a prisoner place costs an average of 100.000 Euros in France).
– Semi- freedom : This alternative consists in the detainee coming back to the prison at night or during week ends. This alternative in France applies only to detainees having only one more year left of their sentence. This system is very useful in allowing a progressive return to normal life. However the benefit of this alternative is dependant on possibilities to find a job and a housing shelter ; consequently it applies only to 3 % of the total number of detainees in France.
– Electronic supervision : It is up to the judge in charge of implementation of sanctions to decide on the time table to be respected by the detainee benefiting from the electronic tag. From 300 in 2000 the number of persons benefiting from electronic reached 3000 in 2005. But only detainees having less than one year imprisonment to finish can receive an electronic tag. Besides the value of this alternative depends very much on the follow up. For example there should be a well monitored programme of actions if tensions are to be avoided.
Conclusion
To conclude let me remind you that.
- Imprisonment is the means of “punishment” chosen not only as a penal sanction but also as a false solution to problems of migration, mentally health problems in our social context of excessive fear of danger , of feeling of insecurity, of fear for any risk. We have see how imprisonment is often a wrong answer. Imprisonment is pathogenic (that is to say a source of other problems), expensive, inefficient in terms of fight against recidivism. Governments and the media have to bear a great share of responsibility in this situation. Instead our societies ought to develop alternatives to imprisonment. Imprisonment should become the exception, a system conceived for very serious offences and very dangerous guilty persons.
- When implemented imprisonment should absolutely respect the human dignity for the reasons I have already mentioned. Imprisonment should be only be the deprivation of freedom and not the deprivation of hope. That is why one should stress the primordial role of control authorities such as the Council of Europe Commission for prevention of torture (CPT) and in national members States, the various committees and controllers of places of imprisonment(following especially the adoption of the UN Protocol to the Convention against torture).These “control authorities check and monitor conditions of imprisonment. One must also mention the positive effects that European integration in the field of justice might have. For instance the Commission has recently presented a “green book” on the application of EU criminal justice legislation (European arrest warrant ,transfer of prisoners etc) in the field of detention (it is for instance not possible to implement these instruments in a context of very different duration pre- detention periods from country to country).A certain degree of harmonisation of criminal procedure is necessary eat this stageof judicial integration.Consequently the EU must also encourage exchange of good practice (mainly from Nordic countries Norway or Sweden).
I shall mention also the future of restorative justice already widely used to reconciliate people after a genocide and which could be applied as a useful complement to solve individual cases of conflicts. Restorative justice is a process whereby parties with at stake in a specific offence collectively resolve how to deal with the aftermath of the offence and its implications for the future.
- Finally this subject is not foreign to the question of culture, on the contrary .One can indeed appreciate the degree of respect for values and civilisation of a country looking at the state of its prisons. These conditions can say a lot about it. Our democracies have to resist against trends like “victimisation”, excessive legalism and reference especially to penal law. We should not forget the effects of the duration of the sentence on the detainee. In fact the detainee shouldn’t remain passive should become if possible an actor of his sentence. To punish is mainly to educate. How to do so that the culpable become an actor of his sanction. After 15 years of imprisonment how is the person and at this stage what is the sense of the sentence ?
But there is the victim of the crime. Is it justifiable also to impose a “legal oblivion” to the victim ?
I shall conclude these ethical uncertainties sharing only one certainty with the philosopher Foucauld in his famous book “Surveiller, punir”, : “imprisonment should not remind the junk -debarras – of justice”.