MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1507/H46-23

19 September 2024

1507th meeting, 17-19 September 2024 (DH) Human rights   H46-23 Petrescu group v. Portugal (Application No. 23190/17) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)313, DH-DD(2024)322, DH-DD(2024)790, CM/Del/Dec(2023)1475/H46-25

 

Application	Case	Judgment of	Final on	Indicator for the classification
23190/17	PETRESCU	03/12/2019	03/03/2020	Structural problem
4581/20+	DA SILVA SANTOS PEREIRA AND DIAMANTINO DA SILVA	09/06/2022	09/06/2022
28688/20+	RIBEIRO DOS SANTOS AND JEVDOKIMOVS	15/09/2022	15/09/2022
53415/21	DOS SANTOS NEVES	02/03/2023	02/03/2023
15767/21	NIEUWOLT	30/11/2023	30/11/2023
42791/21	PADEIRINHA CARDOSO	30/11/2023	30/11/2023
31519/22+	FERREIRA CAPITÃO AND GIL CARDOSO	18/01/2024	18/01/2024
31516/22	MARQUES ÂNGELO	22/02/2024	22/02/2024
25582/22+	OKCHUKWU MGBOKWERE AND OTHERS	08/02/2024	08/02/2024
17761/22	CUNHA CASACA	06/07/2023	06/07/2023	Structural problem

Case description

This group of cases concerns the inhuman and degrading treatment of the applicants due to overcrowding and poor material conditions of detention and the lack of effective remedies to complain about their situation (violations of Articles 3 and 13).

In Petrescu, the European Court observed that there was a structural problem of overcrowding in Portugal which affected more than half of the prison establishments (§ 65). The European Court recommended to the respondent State to consider the adoption of general measures to guarantee prisoners conditions of detention in conformity with Article 3 of the Convention (§ 117). It also indicated that a remedy should be available to prisoners for the purpose of preventing the continuation of an alleged violation or obtaining an improvement in the conditions of detention (ibidem).

Status of execution

The Committee of Ministers examined the case of Petrescu most recently at its 1475^th meeting (September 2023) (DH). Since then, six new judgments have been added to this group.

In view of this meeting, the authorities provided updated information on the general measures on 21 March (DH-DD(2024)322) and 3 July 2024 (DH-DD(2024)790) followed by information on the individual measures in several cases^[1] of this group on 26 March 2024 and 3 July 2024.

In Cunha Casaca, the authorities provided an action plan on 15 March 2024 (DH-DD(2024)313).

Individual measures:

Previous examination by the Committee of Ministers: the Committee notably invited the authorities to provide information on one of the applicants in the Petrescu case,[2] noted that the situation of the other applicants was in line with the relevant minimum standards and considered that more lasting improvements in their situation was closely linked to the general measures.  

Information provided since then: The authorities paid the just satisfaction awarded by the Court to the applicants in all the judgments of this group.[3] With regard to the situation of the applicants who are still detained, they indicated that Mr. Diamantino Da Silva, Dos Santos Neves, Cunha Casaca, Okchukwu Mgbokwere and De Souza currently occupy individual cells of at least 6 sq.m, while Mr. Dias Ferreira shares a cell of 18 sq. m (with a fully partitioned sanitary block) with two other inmates. The remaining applicants are no longer detained.  

General measures:

Previous examination: the Committee urged the authorities to rapidly adopt a comprehensive strategy aimed at identifying and tackling the root causes of prison overcrowding and called upon them to pursue their efforts to limit the entries in the prison system. Moreover, while noting with satisfaction the works carried out to improve the material conditions of detention, it considered that more information was necessary to assess the authorities’ strategy in this area.

Finally, the Committee urged the authorities to step up their efforts to adopt the legislative measures required to establish an effective judicial preventive remedy. It also called upon them to ascertain whether developments in the national judicial practice conclusively demonstrate that the existing action for State’s extra-contractual liability constitute an effective compensatory remedy. In the negative, it requested them to establish such a remedy.

Information provided since then or available in the public domain:

1) As regards prison overcrowding

On 2 August 2023, the Portuguese Parliament adopted legislation establishing a pardon of sentences and an amnesty for young offenders (aged between 16 and 30 at the time of the commission of the offence) for crimes committed before 19 June 2023.^[4] The authorities indicated that the application of this law had a positive effect, resulting in the release of 255 prisoners (as of 14 March 2024) and the reduction of the detention time of 282 prisoners (as of 14 September 2023).

The statistics provided illustrate a slight decrease in prison population which, by June 2024, stood at 12,115 prisoners with a total capacity for 12,688 places and an occupancy rate of 95.5% (in July 2023 there were 12,461 prisoners with an occupancy rate of 98%).

According to the data published by the Directorate General of Social Reintegration and Prison Services (“DGRSP”), in December 2023, 25 prisons (out of 49) continued to operate above their official capacity and one at full capacity.^[5]

With regard to the use of alternatives to imprisonment, when compared to 2022, the number of non-custodial sentences issued, and pre-trial measures adopted slightly decreased in 2023 and the first half of 2024^[6] while the use of electronic surveillance measures remained essentially stable.^[7]

2) As regards material conditions in prisons

The authorities continued implementing their plan to close prisons that cannot ensure adequate detention conditions, including that of Lisbon (the largest in the country) by 2026, build five new prisons, improve the material conditions in the other prisons and increase prison staff.^[8]

In October 2023, they adopted a multi-annual investment plan for the period 2023-2027,^[9] aimed at improving prison conditions, modernising facilities, and enhancing prisoners’ access to healthcare. The plan allocated 37 216 450 EUR for renovation works across eight prisons, including the replacement of the prison on São Miguel Island in the Azores, and all six detention centres for young offenders.

The authorities indicated that by the end of 2023, renovation works were completed in 18 prison facilities, with interventions in five additional prisons scheduled for completion by the end of 2024. They further reported improvements in the living conditions in approximately 700 cells and 160 dormitories in 20 different prisons and interventions to renew or establish common spaces such as kitchen, training rooms, and workshop areas in three other penitentiaries^[10] (for more details see (DH-DD(2024)322). The authorities indicated that they have completed works for the separation between the sanitary block and the rest of the cell in 30 prisons.

Moreover, 24 prisons were equipped with rooms for conjugal visits and the installation of landline phones in all prison cells is ongoing. Pilot projects were launched to integrate the prisoners’ clinical records into the general database of the National Health Service and to develop a digital platform to allow them to submit requests and complaints.

In addition, renovation and expansion works, required to proceed with the closure of Lisbon prison, are underway in four prisons (expected to be completed by the end of 2024),^[11] while public procurement procedure for additional interventions (accounting for over half of the funds allocated) have been launched and are in progress (for more details see DH-DD(2024)790).

3) As regards domestic remedies

a. Preventive remedy

Prisoners can lodge a complaint with prison directors to complain about inadequate conditions of detention.[12] The authorities indicated that 1179 such complaints were submitted in 2023 and 385 in the first semester of 2024.

They underlined that the establishment of a system of registration of these complaints is underway to facilitate data collection. The authorities reiterated that they are in the process of reviewing the 2009 Code of Execution of Sentences to allow prisoners to challenge in court measures of the prison administration which affect their rights.

b. Compensatory remedy

To corroborate their claim that an action to establish the State’s extra-contractual liability^[13] may constitute an effective compensatory remedy, the authorities notably referred to a 2021 judgment (not final) of the administrative first instance court of Sintra which awarded compensation for inadequate prison conditions under this remedy.^[14] They indicated that similar proceedings are pending before several domestic courts.

Moreover, the authorities emphasised that, in a judgment of 22 June 2023, the Supreme Court, while dismissing an application for habeas corpus based on inhuman detention conditions, indirectly acknowledged that non-compliance with international conventions on prison conditions is an issue to be assessed in terms of non-contractual liability of the State and/or of the bodies that supervise the execution of detention measures.^[15]

The authorities further indicated that the adoption of a legislative reform to explicitly include poor conditions of detention as a possible ground to engage the civil liability of the State, was interrupted by the dissolution of the Parliament in January 2024 and the following elections of March 2024.

Submissions from civil society (Rule 9 (2))

In their submission of 19 July 2024, the Forum Penal – Associação de Avogados Penalistas and the European Prison Litigation Network (EPLN) consider that no significant progress has been achieved since the last examination of this group by the Committee (DH-DD(2024)858). They note that despite renovation works carried in several prisons (they report 20 out of 45), overcrowding remains a major issue in Portugal, with a 95% occupancy rate and over half of the prisons at or beyond full capacity. The NGOs recall, in this context, that the Council of Europe's White Paper indicates that an occupancy over 90% is a high-risk situation requiring the adoption of preventive measures.

Regarding the domestic remedies, they highlight that the Regulation on Complaints and Requests,[16] issued in 2021 to clarify and simplify the internal complaints procedures to the prison directors, remains unpublished and inaccessible thus limiting the effectiveness of this avenue.

They further consider that seeking compensation for poor detention conditions under the extra-contractual liability of the State is not an effective remedy due to the lack of specific regulations, limited access to legal information and assistance, and excessively lengthy proceedings before administrative courts.

Other relevant information

In its annual Report for 2023,^[17] the National Preventive Mechanism (NPM) restated its concerns about the discrepancy between official and actual prison capacity detected in several penitentiaries. It further underlined the urgency to reduce overcrowding, recommending the adoption of targeted measures. 

In its report of 13 December 2023, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”),[18] indicated that the conditions of the Lisbon Central Prison, described in the previous reports as “in a state of advanced dilapidation”, further deteriorated and in most areas of the establishment prisoners could be said to be living in degrading circumstances. The CPT also recommended the Portuguese authorities to pursue their efforts to promote a greater use of alternatives to imprisonment, notably as regards short sentences.

Analysis of the Secretariat

Individual measures

No further individual measures are required in the Nieuwolt and Padeirinha Cardoso cases in which the just satisfaction was paid, and the applicants have been released.It is therefore proposed to the Committee to close its supervision of these two repetitive cases and to adopt the draft final resolution appended.

As regards the applicants who are still serving their prison sentences,[19] the information provided shows that their situation has improved since the time considered in the judgments, notably as their personal living space meets the minimum standard. More lasting improvements in their situation whilst they remain detained appear to be closely linked to the adoption of the general measures, including the establishment of an effective preventive remedy.

General measures

1) As regards prison overcrowding

The legislation adopted by the authorities in October 2023 to reduce the prison population by facilitating, under certain conditions, the release and reduction of sentences of young offenders is a positive development insofar as it contributed to the slight decrease (- 2.5%) of the prison population observed in June 2024.

It remains however a matter of concern that, at the end of 2023 (as in 2022), 25 out of 49 prisons continued to operate at or above their official capacity and the scope of the above reduction does not seem, prima facie, sufficient to have redressed this situation. It appears that the exceptional nature and limited scope of the adopted legislation, like others previous interventions,^[20] does not allow it to generate a long-lasting positive impact.

In this connection, it is worrying that no concrete steps have been taken by the authorities to develop, as requested by the Committee, a holistic strategy to identify and address the root causes of overcrowding through a systematic and integrated approach, aimed not merely at expanding overall prison capacity but to develop permanent solutions (see CM/Notes/1475/H46-25). Against this backdrop, the Committee may wish to strongly urge the authorities to address this issue.  

In the meantime, recalling that a prison occupancy rate such as that of Portugal represents a high-risk situation,[21] it remains crucial that, pending more substantial interventions, the authorities take every necessary action to assuage the impact of overcrowding, including in the prisons scheduled for closure, keeping the Committee informed of the measures adopted and the progress achieved. [22]

It seems also useful to receive the authorities’ comments in relation to the need, restated by the NPM also in its December 2023 report, to update the official capacity of prisons, together with information on how this capacity is presently calculated.

2) As regards material conditions

The information provided indicates that the Portuguese authorities continued to work actively to improve detention conditions in the national prison system and overall available services and to upgrade the prison infrastructure. In this context, it is encouraging that to strengthen further these actions, they allocated in October 2023 additional substantial financial resources (more than 37 million EUR).

These developments can be noted with satisfaction and the authorities could be invited to continue carrying out the required interventions to improve conditions of detentions, including by drawing on the latest recommendations addressed to them by the CPT.

The information provided however does not account for the measures adopted or envisaged to address, in all the prisons concerned, the shortcomings other than the lack of partitioning of the sanitary blocks.[23] It does not indicate either the timeline and available financial resources for the shutdown of all the facilities, other than the Lisbon Prison, considered to be beyond repair and the building of five new prisons. The authorities should therefore provide this information together with their assessment of the impact of the works carried out so far on the compliance of the prison network with the standards of conventions.

3) Domestic remedies

It is a matter of great concern that no progress could be observed in the development of a combination of effective remedies. A change of pace in the action of the authorities appears necessary. This seems confirmed also by the growing number of similar applications recently communicated by the Court to the Portuguese Government, one of which reflected the possible application of the pilot judgment procedure thus hinting at a massive influx of repetitive applications.^[24]

With regard to preventive remedies, it is recalled that in Petrescu, the Court indicated that a complaint to the prison director did not ensure the independence required to rule on the matter and does not constitute an effective remedy under the Convention (§ 81).

To address this issue, the authorities reiterated their intention to establish a combination of administrative and judicial remedies.

As to the administrative part of the remedy, the authorities should rapidly provide the information and statistical data requested by the Committee on the functioning of the procedure to complain before prison directors and the remedial actions that can be adopted. As to the judicial part of the remedy, no advances were made in the establishment, announced by the authorities, of a judicial review of the decisions of prison directors.

The Committee may therefore wish to strongly urge the authorities to adopt, without further delay, the necessary legislative measures to establish such judicial review or any effective judicial preventive remedy meeting the requirements set out in the Court’s case-law (Petrescu, §§ 76-78).

As regards compensatory remedies, the examples of positive judicial decisions provided so far by the authorities (two first instance judgments issued by the same court in March 2021) do not reflect a consistent and consolidated judicial practice, fully aligned with the Convention's requirements, engaging the State’s non-contractual civil liability for poor conditions of detention.[25]

Noting the information provided (i. e. on similar pending cases and the Supreme Court 2023 indications), this conclusion could be revised should relevant developments in the domestic case law be detected by the authorities.

Meanwhile, it is of the utmost importance, that the authorities take, without further delay, adequate and sufficient measuresto establish an effective compensatory remedy, considering in this context the adoption of legislative interventions, for example to include poor conditions of detention among the possible grounds to trigger the State extra-contractual liability, as they previously indicated.

Follow-up of the cases

The newly elected government underlined their commitment and determination to adopt the required measures to address the structural problems highlighted by the judgments of this group and consultations between the Secretariat and the Portuguese authorities on these issues are scheduled for November 2024 in Lisbon.

These developments can be welcomed, and the authorities can be encouraged to draw fully on the Council of Europe relevant work[26] and initiatives for technical assistance and support in their execution action.

The Committee may wish to request the authorities to provide information on the different matters referred to above and on the other questions outlined in the analysis of the Secretariat by 30 June 2025 at the latest.

Financing assured: YES