The conditions of detention, a global problem

I.  White Chapter about prision overcrowding

The Council of Europe strongly recommended  to national authorites to remedy the problem considering the overcrowding of the prisions and the system of criminal justice as a whole,  both in terms of guarantee the rights of humans, as well as the efficient  management of the criminal institutions. At 30 september 1999 the Committee of Ministers adopted the recommendation no. R (99) 22 concerning the owercrowding and increasing of population in prision. The document contains a series of suggestions and relevant recommendations for practical measures to be taken at all levels – legislative, judicial and executive.[1]

At over 15 years from the adoptation of the Recommendation  even despide the efforts of member states, the problem is still acute at European level,  as it is in many other parts of the world. Therefore over the last few years, The European Court of Human Rights has to examinate many complains about the precaious conditions of detention and has etablished many violations of articole 3 from the Convention Of Human Rights. [2]

There is also a opposite tendency of a slight decrease of the population from the prision in the last few years, which is mainly because of the decreasing of the number of detaineers who execute a short punishment with prision . Meantime 2012 and 2013, the number of detaineers from the criminal institutions from the member states of the Concil of Europe is in decrease with aproximatly 56.700 of persons. Despide the decrease of the gross number of detaineers, avarage rate of the population from the european prisions between 2012 and 2013 with 5%. In 2012 [3] is was 127 detaineers to 100.000 population, and in 2013 increased with 134 of detaineers to 100.000 population. In accordance with SPACE I, in 2012,   was overcowding in 22 from the 47 countries of the Concil of Europe. In 2013, [4] the numeber of countries with pvercowding prisions decrease to 21, and in 2014 up to 13. In 2013, 19 between the administrations of the prisions who had overcowding prisions was the same with the number from, 1.600.324 of persons  were hold in prisions in Europe and decreased towards 2013 it was 78.893.  Average rate of the population in prision  decreased also with 7% in comparatin with 2013. Its value in 20145 it was of 124 detaineers to 100.000 from the population. This evolutions with although they are modest in comparation with the total number of detaineers from Europe, they are welcome, and the National Authorites should be encouraged ti maintain this positive trend. It is still to earlier for to evaluate all posible positive reasons behind this number in decrease to people from prision.

In order to obtain a during reduction  of the figures relating to prision, is important to be considered the legislative possibilities for:

– Decriminalisation of certain offences

– The individualization of the sentences pronounced about of their necessity and proportionality

– Transition from justice process to mediation, compensation scheme and compensation of victims

– Prevision of a sufficient alternative for pre-trial detention

– Stay of execution of punishment with prision with or without enforcing of certain conditions

– Replacement of convictions with punishment with prision for certain offences with sanctions and measures executed in community (work in community service)[6]

Jurisprudance ECHR

II.  Mskhiladze vs. Russia (was not violated art. 3)

The case originated in an application (no. 47741/16) against the Russian Federation introdused by Mr Noe Georgiyevich Mskhiladze, represented by Mrs lawyer Olga Pavlovna Tseytlina, the application was introdused in 05 august 2016. [7]

The application is based on the conditions in which the applicant was in detention, the legality of detention. The applicant arrived in Russia in 1988. He was subsequently convicted of criminal offences on several occasions. He was released on 3 December 2014 after serving his most recent prison sentence. [8]

On 2 December 2014 the Russian Ministry of Justice issued an exclusion order, declaring the applicant’s presence in Russia undesirable and prohibiting his return to Russia until 2020. Further to the exclusion order, on 4 March 2015 the migration authorities issued a deportation order in respect of the applicant and he was later arrested. On 6 March 2015 a judge authorised his further detention until 10 March 2015, with a view to enforcing the deportation order. His detention was then extended until 30 August 2015. [9]

From 15 December 2015 to 5 August 2016 (when the application was lodged with the Court) and then further until 22 June 2017 the applicant was kept in the Сentre for the Temporary Confinement of Foreign Nationals (Центр временного содержания иностранных граждан) in Krasnoye Selo. From the start date to mid-February 2016 he was kept in cell no. 404 and from mid-February to 3 August 2016 he was in cell no. 403. According to the applicant, each cell measured eighteen square metres and accommodated four people. The cells were equipped with bedside boards and beds but there were no chairs, tables or other furniture. On 3 August 2016 the applicant was transferred to cell no. 304, measuring eight square metres, where he was kept alone. From late September 2016 to 17 January 2017 he shared cell no. 706, measuring ten square metres, with another detainee. From 17 to 22 January he was in cell no. 405 and from 22 January to 22 June 2017 he was kept in cell no. 406 with three other detainees. [10]

Shower facilities were accessible for ten minutes every fourth day in 2016 and once every seven to ten days from early 2017. There were no facilities for washing or drying clothes and no toilet paper, toothpaste, soap or the like was provided. Bedding was changed once a month. [11]

The Court observes that the applicant did not allege that he had been kept at the relevant time in severely overcrowded conditions resulting, for instance, in him not having an individual sleeping place and having to take it in turns to It follows from the applicant’s own submissions that detainees had 4-4.5 square metres of floor space each (including space occupied by furniture but not the cell toilet area) when he was detained with three other people in the cells located on the fourth floor of the detention centre. [12]

In the Court view , considerations set out above, are not enought for to conclude that there has been a violation of art. 3 of the Convention. [13]

It is not disputed that the applicant’s detention in a centre for foreigners amounted to a “deprivation of liberty” and that it fell within the ambit of subparagraph (f) of Article 5 § 1 of the Convention.

The applicant was detained in a centre for strangers  because the state of Georgia refuse to receive him. [14]

There is no dispute about the fact that at all stages of the administrative-offence proceedings, the Russian authorities, including the courts and the bailiff service, were aware that the applicant was a stateless person. The impracticability of his removal to Georgia should have become obvious to them no later than 24 March 2016, when the Georgian authorities reiterated their earlier statement that the applicant was not a Georgian national and that there were no other legal grounds for assistance to the Russian authorities. [15]

The Court  declares the complaints concerning the conditions of detention from 15 December 2015 to 22 June 2017, and the lawfulness, arbitrariness and review of detention from 26 January 2016 to 22 June 2017 admissible, holds that there has been no violation of Article 3 of the Convention.  Holds that there has been a violation of Article 5 § 1 of the Convention.

III. Pole Shchuk and others vs. Russia

The Court notes that the applicants were kept in detention in poor conditions. The details of the applicants detention are indicated as follows:the applicants Aleksandr dmitriyevich poleshchuk, Andrey Aleksandrovich, Aleksandr petrovich Novik, Denis Mikhaylovich, Aleksandr sergeyevich Zakharov, Maksim Georgiyevich Bets, Valery Anatoyevich Glukhikh, Ivan Vasilyevich kulik, Ilya Vadimirovich Lindo camplains about similar conditions of detention:not enought space, lack of or insufficient natural light, no or restricted access to warm water, infestation of cell with insects/rodents, poor quality of food, no or restricted access to shower , passive smoching, no or restricted access to toilet, insufficient number of sleeping places .

The Court refers to the principles established in its case-law regarding inadequate conditions of detention . It reiterates in particular that extreme lack of space in a prison cell or overcrowding weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were „degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings. [16]

Having examined all the material submitted to it the Court considers that in the instant case the applicants conditions of detention were inadequate. [17]

These complaints are therefore admissible and disclose a breach of Article 3 of the Convention. [18]

Roumania has a big problem, and i believe that we all are agree with that. This problem is the conditions of detention in same bodys of prison that are not renovated (these benefiting of law of compensatory appeal, in the conditions of the law. (the law 169/2017)

By this articol i wish to demonstrate that not only Roumania has a big problem with the conditions of prision, other countries have the same problem.

According  with the comunicate of the Natinal Agency of Prisions with the number 23362/SC/29.01.2018, in the period 19.10.2017-26.01.2018, from the establishments subordinated to the Natinal Agency of Prosions have been put in freedom as a result of ending of period of detention by givind compesatory benefits provided from the law 169/2017, 1031 persons , being admitted by te competent courts conditional release for 3427 persons.

IV. Law 169/2017 [19]

This law amend and completed the law 254/2013  of execution of punishments and measures involving deprivation of liberty  ordoned by judicial bodies in the criminal process.

According the art. I point 3 from the law 169/2017 it addes to the law 254/2013, after the art. 55, introdused a new articol, the art. 551 paragraph (1) having the following content: In the calculation of the punishment effective execute dis taken into account, no matter the sistem of execution of the punishment, as a compensatory measure, and the execution of the punishment in unappropriate conditions, in which case, for each period of 30 days executed in unappropriate conditons, even if they are not consecutive, is considered executed, suplimentary, 6 days from the punishment applicated. It applies in the following cases:

a) accommodation into a space less than or equal with 4 MP/detainee,which is calculated, excepted the surface of sanitary groups andthe storage area of the food by dividind the total area of the broads of detention to the number of persons registrated in those rooms, no matter the equipment of the concerne area.

b) lack of access of outdoor activites

c) the lack of access of natural light or enough air or the functionality of the ventilation sistem

d) the lack of appropriate temperature of the room

e) the lack of posibility to use the private toilet and to respect the health basic standards, as well as the hygie requirements

f) The existence of water in the walls, mold, damp in the wall of the rooms of detention

According with those readings, release a single conclusion , and this is that the law 169/2017 ( the law of compensatory appeal) is a appropriate measure to compensate for to expose the detaineers to inhuman or degrading conditions according in the sense of art. 3 of the Convention with the definition set out by the Court. This law having a more positv than negativ impact, the negativ aspect consist in the 1% of recidivism.

[1] White Chapter about prision  overcrowding, pg. 4, paragraph 4;
[2] White Chapter about prision  overcrowding, pg. 4, paragraph 5;
[3] White Chapter about prision  overcrowding, pg. 7, paragraph 7 apud annual criminal statistics of Council of Europe (SPACE I, 2012);
[4] White Chapter about prision  overcrowding, pg. 7, paragraph 7 apud annual criminal statistics of Council of Europe (SPACE I, 2013);
[5] White Chapter about prision  overcrowding, pg. 7, paragraph 7 apud annual criminal statistics of Council of Europe (SPACE I, 2014);
[6] White Chapter about prision  overcrowding, pg. 24, paragraph 115;
[7] Mskhiladze vs. Russia, ECHR, paragraph 2;
[8] Mskhiladze vs. Russia, ECHR, paragraph 6;
[9] Mskhiladze vs. Russia, ECHR, paragraph 7;
[10] Mskhiladze vs. Russia, ECHR, paragraph 9;
[11] Mskhiladze vs. Russia, ECHR, paragraph 22;
[12] Mskhiladze vs. Russia, ECHR, paragraph 36;
[13] Mskhiladze vs. Russia, ECHR, paragraph 37;
[14] Mskhiladze vs. Russia, ECHR, paragraph 47;
[15] Mskhiladze vs. Russia, ECHR; paragraph 48;
[16] Pole Shchuk and others vs. Russia, ECHR, paragraph 7;
[17] Pole Shchuk and others vs. Russia, ECHR, paragraph 9;
[18] Pole Shchuk and others vs. Russia, ECHR, paragraph 10;
[19] The law 169/2017 was published in the Official Journal nr. 571 from 18 July 2017.

Student Daniela Miruna Tătoiu

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