MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1398/H46-21

11 March 2021

1398th meeting, 9-11 March 2021 (DH)

Human rights

 

H46-21 Rezmiveș and Others and Bragadireanu group v. Romania (Applications Nos. 61467/12 and 22088/04)

Supervision of the execution of the European Court’s judgments

Reference documents

DH-DD(2021)110, DH-DD(2020)1059, CM/Del/Dec(2020)1390/H46-19

 

Application

Case

Judgment of

Final on

Indicator for the classification

61467/12+

REZMIVEȘ AND OTHERS

25/04/2017

25/07/2017

Pilot judgment

22088/04

BRAGADIREANU GROUP (List of cases CM/Notes/1398/H46-21-app)

06/12/2007

06/03/2008

Complex problem

Case description

This group of 90 judgments[1] concerns the inhuman and/or degrading treatment suffered by the applicants due to overcrowding and poor conditions of detention in prisons and police arrest and detention centres, and also the lack of an effective remedy in this regard, as well as other dysfunctions regarding the protection of prisoners’ rights, including the provision of health care (violations of Article 3; violation of Article 13 combined with Article 3 in the case of Marcu).[2]

In the pilot judgment Rezmiveş and Others delivered on 25 April 2017 the European Court found that the persisting structural problems of overcrowding and poor conditions of detention amounted to a practice incompatible with the Convention. It indicated that two categories of general measures had to be implemented: (i) measures aimed at reducing overcrowding and improving material conditions of detention, and (ii) a specific compensatory remedy, capable of affording adequate compensation. As regards the preventive remedy already in place, the Court noted that it was difficult to envisage a genuine prospect for detainees to obtain redress for their situation unless there was a general improvement in conditions of detention in prisons (§ 123).


Status of execution

Individual measures: The Notes on the Agenda of the Committee’s 1348th meeting (June 2019) (DH) highlight the questions that were then outstanding about the applicants’ individual situations (for details see CM/Notes/1348/H46-21). Since then, there have been exchanges between the Secretariat and the authorities; information is awaited on the measures taken to address these questions.

Following the repeal in December 2019 of a compensatory mechanism providing for reductions of sentence, the Secretariat also approached the authorities to obtain updated information about the applicants who are still serving their original prison sentences and, if necessary, the measures taken or envisaged to ensure that they are detained in Convention-compliant conditions. The authorities are expected to inform the Committee accordingly in their forthcoming submissions.

General measures:

I. Last examination by the Committee of Ministers (December 2020)[3]

Shortly before that meeting, the government adopted a revised action plan with measures to address the substantive problems revealed by these judgments and a time-table for their implementation, due to be completed by 2025 (DH-DD(2020)1059), and submitted it to the Committee on 20 November 2020.

As regards the question of remedies, it emerged that the Court had decided to re-consider whether an action to establish the non-contractual liability of the State may constitute an effective compensatory remedy within the meaning of Article 13 of the Convention for complaints related to the conditions of detention (and also of transportation between prisons).[4] It raised this question and requested examples of relevant domestic case-law in a new application communicated to the Romanian government on 21 September 2020 (Polgar v. Romania, Application No. 39412/19). It also requested information on the functioning of the preventive remedy established by Romania in 2014, to determine whether, as it had recommended in the Rezmiveş and Others pilot judgment, preventive and compensatory remedies now coexist in the domestic legal order.

The Committee welcomed the revised action plan and instructed the Secretariat to prepare a detailed analysis, while encouraging the authorities to pursue their cooperation with the Secretariat. It also noted the developments before the Court as regards the question of the remedies. It decided to resume its examination of these cases at the present meeting in the light of the Secretariat’s analysis of the action plan and of any further relevant information and developments.

II. Main measures included in the revised action plan and progress in their implementation

Following exchanges with the Execution Department, the authorities provided on 28 January 2021 updates on the implementation of the action plan and clarifications on recent trends observed in the size of the prison population (DH-DD(2021)110).

1) Cross-cutting aspects

The implementation of the action plan is being closely followed-up by a working group composed of representatives of the ministries and authorities concerned. The measures included will be financed through the yearly budget earmarked for the relevant authorities, a loan granted by the Council of Europe’s Development Bank and the Norwegian Financial Mechanism.

In addition to the measures outlined below, the authorities have stated their intention to reform the law on the execution of sentences to tackle the deficiencies observed in the prison system and ensure compliance with the Convention requirements laid down in the Court’s judgments and the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”), particularly in its latest report on Romania (2018).[5] Draft amendments are due to be finalised by June 2021.


2) Measures concerning the prisons

a. As regards overcrowding

- Current situation: As already noted by the Committee, a significant reduction in the size of the prison population was achieved thanks to the combined effects of a 2014 reform of the prosecution and penal policy and of reductions in the sentences granted under a compensatory mechanism in force between 2017 and 2019. The prison occupancy rate thus decreased from 164% in January 2015 to 111% in June 2020. Since then, however, there has been an increase in the number of prisoners which brought the overall occupancy rate to 119.22 in December 2020. The authorities explain that this is due to the repeal of the compensatory mechanism and to a growing number of prisoners transferred from abroad to serve their sentences in Romania.

- Measures to address overcrowding: The action plan sets out a combination of measures consisting of (i) investments to expand the capacity of the prison system, by creating 7,849 new accommodation places, including two new prisons, by the end of 2025 and further 600 new accommodation places to offset the recent increase in the prison population; (ii) action to reinforce the Probation Service, notably by recruiting 611 new staff by the end of 2022 (with recruitment now ongoing to fill in 163 positions); and (iii) a new government-endorsed strategy for 2020-2024 aimed at tackling reoffending by strengthening the domestic capacities for the social reintegration of prisoners.

Meanwhile, as advised by the Committee, the National Prison Administration (“NPA”) is monitoring the occupancy rate across the prison system on a weekly basis and is taking action to correct imbalances in the distribution of prisoners, including transfers, when the sanitary situation created by the COVID-19 pandemic allows it. In January 2021, for instance, the NPA organised transfers from seven prisons which had an overall occupancy rate well above the national average (from 136% to 164%), and even higher rates in some sections (from about 166% to 202%).

b. As regards material conditions of detention

The action plan sets out a three-phase strategy to bring these into line with the requirements of Article 3. This includes, for 2020, repair and maintenance work for 3,139 places[6] and, by December 2024, modernising existing premises for 994 places. In the longer term, more substantial upgrades in the infrastructure are envisaged. The authorities are now tendering a technical expertise to determine the investments required for each building and estimate that this expertise will be completed by April 2022.

The authorities also refer to regulations adopted to improve individual and collective hygiene and the food provided to prisoners and indicate that the daily food allowance per prisoner was increased in 2018 and again in 2020. They also provide general information about the types of out-of-cell activities available to prisoners, stressing that they are working on increasing the efficiency of the programmes and activities aimed at supporting prisoners in their social reintegration efforts.  

c. As regards health care services

The action plan identifies as root causes of the deficiencies found by the Court in this area (i) the significant and persistent shortage of medical personnel in the prison health care system[7] and (ii) the general legislation on health care provision under the public health insurance system, which is not fully adapted to the specific situation of patients in the prison system.

To tackle these, the authorities have taken or envisage taking steps to (i) recruit medical staff or, failing that, conclude contracts with external practitioners; (ii) enact new regulations on the provision of medical assistance for prisoners, to be drawn up jointly by the Ministries of Justice and of Health; and (iii) reinforce the control and supervision by the NPA medical directorate of the standard of health care provided in the prison system. It further appears that the NPA has promoted several amendments to the general healthcare legislation.[8]


The action plan outlines several other initiatives (such as measures to ensure that prisoners have access to screening for transmissible diseases) and includes detailed information about the exceptional measures taken in the context of the COVID-19 pandemic.

3) Measures concerning the system of police arrest and detention centres

Under the regulations in force, these facilities accommodate remand prisoners during pre-trial proceedings, which, according to the law, cannot exceed 180 days. Whilst overcrowding and poor material conditions of detention were found to affect them, the Committee and the Court found that the main problem with most of the existing centres is their structural unsuitability for longer-term detention. As they are attached to police stations, they offer only limited possibilities for out-of-cell activities and as some of them are located at basement level, provide no or very limited access to natural light and air.

As regards overcrowding, the action plan refers, first, to a clear decrease in the number of persons placed in these centres, following changes implemented to the system of alternative measures to detention on remand under the 2014 reform, and second, to regulations adopted in 2016 and 2018, which made it possible to transfer prisoners between centres, to keep their occupancy rate within capacity, and ensured central coordination of such transfers. As regards living conditions in the 51 existing centres, the action plan refers to large-scale work the authorities envisage carrying out by 2025 to modernise five of them and construct 26 new ones.[9]

The authorities have also determined that the average length of detention in such facilities has been in practice brought down to 60 days.[10] They will consider, by December 2021, whether to amend the law to make it mandatory to transfer all these prisoners in prison facilities once this limit has expired.

4) Remedies

Following the repeal of the compensatory mechanism providing for reductions in the sentence in December 2019, the Committee requested the authorities to put forward urgent measures to set up a new system of Convention-compliant remedies (CM/Del/Dec(2019)1362/H46-19).

The authorities contend that an action to establish the non-contractual liability of the State constitutes an effective compensatory remedy for complaints related to inadequate conditions of detention. They indicate that between 2017 and 2019, the courts upheld 48 such complaints and ordered compensation in amount of about 106,600 euros. They also provide information on the functioning of the preventive remedy introduced in 2014, specifying that of the 644 complaints made in the first semester of 2020, 244 were upheld by the competent judges.

Rule 9 communication: In submissions of 26 January 2021, the Association for the Defence of Human Rights in Romania – Helsinki Committee (“APADOR-CH”) expresses satisfaction at the measures included in the revised action plan, while stressing the importance of a strict compliance with the timetable set for their implementation. Building on these, the NGO recommends that the authorities establish clear and transparent criteria for the transfer of prisoners and that they pursue and intensify their efforts to attract medical staff in the prison system, while also addressing the deficiencies observed in the healthcare legislation. It also calls for greater transparency and better communication on the current sanitary situation in the prison system and the NPA’s COVID-19 pandemic response (for details, see DH-DD(2021)134).

Analysis by the Secretariat

Individual measures

The authorities could be requested to provide comprehensive information on the remaining questions identified at the Committee’s previous examinations.


General measures

As regards the conditions of detention

The November 2020 revised action plan includes measures which appear to adequately address many of the deficiencies which gave rise to violations of Article 3 of the Convention in these cases. In preparing it, the authorities have also paid heed to the guidance provided by the Committee of Ministers in the earlier stages of the execution process on some aspects requiring priority action on their part (such as reinforcing the Probation Service). This action plan benefits from support at a high political level, as it was endorsed by the government, which attests to the authorities’ strong commitment to ensuring full compliance with the obligations under Article 46 § 1 of the Convention and creates the requisite conditions for the effective and timely implementation of the measures put forward.

Recent evolutions at domestic level, as well as some elements in the authorities’ strategy to tackle some of the problems revealed in the judgments, require, however, more detailed consideration.

It is first noted that prison population inflation has again become a serious concern. It is now established that after a significant and steady downward trend between 2014 and 2020, the situation has worsened since last June, with an increase in the number of prisoners and in the overall prison occupancy rate of about 8% up to December 2020. Based on the explanation provided by the authorities, it cannot be excluded that this upward trend will continue. The data provided further shows that, although the authorities are making efforts to balance the distribution of prisoners, some prisons not only operate well above their official capacity but have in fact overcrowding levels far exceeding the national average reported (119.2 % in December 2020).

The persisting overcrowding and the very severe levels reported for some prisons, against the background of the recent increase in the size of the prison population, require swift and decisive action to put an end to a situation found to fall within the scope of Article 3 of the Convention, a provision which permits no exception or derogation. From this perspective, it is positive and reassuring that the authorities envisage legislative action in addition to their plans to renew and expand the prison estate, since these alone do not appear capable of delivering a sufficiently swift and definite solution to this problem.

The Committee may therefore wish to receive details about the legislative measures envisaged and their expected impact, while stressing the importance for the authorities to draw on the indications in the Rezmiveş and Others pilot judgment (§§ 117 - 119) and the Council of Europe’s extensive work (in particular the Committee of Ministers’ Recommendation Rec(99)22 concerning prison overcrowding and prison population inflation, the European Committee on Crime Problems’ 2016 White Paper on Prison Overcrowding and the specific recommendations of the CPT). All these establish that the creation of new places of detention cannot in itself provide a lasting solution to the problem of prison overcrowding, and that this should be closely supported by other measures and policies aimed at reducing the size of the prison population and keeping it at manageable levels.

Second, as regards the plans to bring the material conditions in prisons into line with the requirements of Article 3, it is key that, pending more substantial upgrades in the prison infrastructure, the authorities pursue their efforts to keep the existing premises in an adequate state of repair. It is likewise important that the preparatory work to determine the infrastructure investments required is rapidly completed and that the Committee is informed about the content of these works and the timetable foreseen for their implementation.

Third, as regards health care in the prison system, it appears crucial to address, as a matter of the utmost priority, the shortage of qualified medical personnel. The persistent difficulties encountered by the prison administration in attracting such personnel clearly show that repeating the attempts to recruit is insufficient and that more far-reaching action is required to resolve this problem. The authorities could draw on the Council of Europe’s relevant work and expertise, particularly the specific recommendations of the CPT in this area.

Lastly, as regards the plans for the system of arrest and detention centres, it is noted that such facilities will continue to accommodate remand prisoners for long periods of time. Accordingly, to fully address the problems revealed by the judgments, both the new and the renovated centres will need to offer conditions which are adapted to the length of the prisoners’ stay, including an appropriate regime of out-of-cell activities and suitably equipped premises for such activities. It remains for the authorities to confirm that their plans meet these requirements.


As regards domestic remedies

The Court has now decided to re-examine whether an action before the domestic courts to establish the State’s non-contractual liability offers an effective avenue to claim financial compensation on account of inadequate conditions of detention and has also requested information about the functioning of the preventive remedy. The need for further action on the part of the authorities to ensure that domestic law provides for an effective remedy or combination of remedies for such complaints must be determined once the Court has made its assessment.

Financing assured: YES



[1] In March 2018, the Committee closed its supervision of 121 other judgments of this group in which the question of the individual measures was settled (CM/ResDH(2018)108).

[2] Some of these cases also concern irregularities in the applicants’ detention on remand (violations of Article 5 § 3 in Viorel Burzo and Leontiuc); the excessive length of criminal proceedings (violation of Article 6 § 1 in Bragadireanu); the lack of sufficient safeguards in the domestic legislation authorising secret surveillance measures (violations of Article 8 in Pop Blaga and Viorel Burzo) and the ban on parental rights that was imposed automatically, prior to 2004, on convicted prisoners serving a prison sentence (violations of Article 8 in Marcu and Viorel Burzo). The general measures required to address these violations are or were examined in the cases or groups Calmanovici (CM/ResDH(2014)13), Vlad and Others, Bucur and Toma and Sabou and Pârcălab (CM/ResDH(2011)73).

[3] A summary of the main developments in the execution process from 2008, when the first judgment of this kind became final, up to December 2020 can be found in the Notes for the December 2020 meeting (CM/Notes/1390/H46-19).

[4] The Court examined this question in the pilot judgment Rezmives and Others, among others. It found so far that the examples of case-law submitted by the Government did not demonstrate with the requisite degree of certainty that such an action provided an effective compensatory remedy in respect of complaints related to inadequate conditions of detention (§ 124).

[5] CPT/Inf (2019) 7.

[6] 91% of these premises were renovated in 2020, as planned (the authorities explained that the delay in completing the work is due to difficulties caused by the COVID-19 pandemic).

[7] In this latter respect, the data provided shows that in 2019 only about 50% of the positions for doctors were filled, which represents a decrease of 10% over the last 10 years, although the NPA has regularly organised competitions to recruit doctors in the prison medical system.

[8] Information provided to the Committee of Ministers in the group of cases Ţicu v. Romania (psychiatric care and treatment in prisons) (DH-DD(2020)252).

[9] Work is not envisaged for the 10 centres now operating in Bucharest, as these are to be replaced by a single detention facility, nor for 10 other centres country-wide, which either provide adequate conditions or only require repair and maintenance work. Once the new centres are completed, the old facilities will be taken out of service.

[10] Only 3.26% of the prisoners placed in pre-trial detention in 2019 were held for longer periods.