MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-31

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-31 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(2024)1022, DH-DD(2024)855, DH-DD(2024)522, DH-DD(2023)1159, CM/Del/Dec(2023)1468/H46-21

 

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/1514/H46-31-app)	06/12/2007	06/03/2008	Complex problem

·  Cooperation project: VC-HRTF-3646: ‘’Further strengthening the provision of health care and mental health in prisons and other closed institutions in Romania’’

Case description

This group, currently consisting of 154 judgments,^[1] mainly 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. It also concerns other dysfunctions regarding the protection of prisoners’ rights, including the provision of health care and of personal assistance to prisoners with disabilities^[2] (violations of Article 3; violation of Article 13 combined with Article 3 in the case of Marcu).^[3]

In the pilot judgment Rezmiveş and Others of 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

The Committee of Ministers last examined this group of cases in June 2023 (1468^th meeting (DH)).

Individual measures:

The 154 judgments in the group concern more than 1,500 applicants.

No further individual measures are required in the leading cases Bragadireanu and Marcu (see CM/Notes/1459/H46-16).

The just satisfaction for non-pecuniary damage and costs and expenses, where awarded by the Court, has been paid in 74 cases but some of the applicants in these cases are still detained according to the information submitted by the authorities in July 2024 (DH-DD(2024)855). In 23 cases all the applicants have been released but confirmation of payment is awaited in respect of some of them.

Exchanges are ongoing between the authorities and the Department for the Execution of Judgments concerning the outstanding questions.  The authorities are constantly providing information on the situation of each applicant and the payment of the just satisfaction awarded by the Court, which allowed the Committee to close (at ordinary meetings) 23 additional repetitive cases since last examination in June 2023. In respect of applicants who are still serving the prison sentences at the origin of the judgments, the Committee considered that improvements in their situation were closely linked to the general measures and to the effective functioning of the existing preventive remedy (see decisions adopted at the 1331^st meeting in December 2018 (DH)).

General measures:

As the measures adopted up to 2020^[4] had not sufficed to resolve the problems revealed by these judgments, the Romanian Government adopted in November 2020 a new action plan with additional measures and a timetable for their implementation, due to be completed by 2025 (DH-DD(2020)1059).

Following the examination by the Committee in June 2023, the authorities submitted information on 29 September 2023 (DH-DD(2023)1159), 13 May 2024 (DH-DD(2024)522), and 6 September 2024
(DH-DD(2024)1022) focusing on prison reforms, infrastructure development, and medical services; the main elements are summarised below. On 21 November 2024, the authorities sent an information note on general measures (DH-DD(2024)1359). Given the late submission, it was not possible to summarise it in these Notes.

1)     Envisaged legislative amendments and reform of the penal policy

The action plan envisaged a reform of 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 (“the CPT”).

In March 2023, the Minister of Justice set up a working group to conduct an in-depth analysis of the State’s penal policy and the relevant legislation and to make proposals for reform. These were expected to be submitted to public consultation and tabled in Parliament, by the end of 2024.[5]

2)     Measures concerning the prisons

a. As regards overcrowding

- Current situation: According to the data published by the National Prison Administration (“the NPA”), on 13 August 2024,^[6] the capacity of penal institutions stood at 19,542 places and the number of prisoners at 24,586 (as of 15 July 2024). At the time the 2020 action plan had been submitted, these indicators stood at 18,245 and 21,744 respectively.^[7] This means that the shortage of places increased from approximately 3,500 to 5,000 for the period 2020-2024.

In their latest submissions, the authorities indicated that the current upward trend in the number of convicted persons held in prisons is not alarming, since the shortage of detention places has decreased from 14,000 in 2012 to approximately 2,437 as of 2023, owing to the legislative reforms initiated in 2014.^[8]

- Measures to address overcrowding: The action plan set 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; (ii) action to reinforce the Probation Service, notably by recruiting 611 new staff by the end of 2022; and (iii) a government-endorsed strategy for 2020-2024 aimed at tackling reoffending by strengthening the capacities for the social reintegration of prisoners.

i) capacity of prisons

In their 2024 submissions, the authorities indicated that 2,003 new accommodation places were made available between 2021 and 2023, under the target set in the action plan (3,200). They estimate that additional 4,594 places will be created by the end of 2025.^[9] They have signed the order to start the construction of the new Berceni and Unguriu prisons, which will provide 1,900 new detention places when completed (within 48-60 months). Despite the delays in starting the construction of the two new prisons, the authorities have identified alternative measures, such as the identification of available spaces that can be converted into detention facilities.

The NPA has continued to monitor the occupancy rate across the prison system and to take action to correct imbalances in the distribution of prisoners, including transfers. An increase was reported in the semi-open regime, from 140.20% to 143.48% and in the maximum-security regime, from 102.33% to 109.53%. Between January 2002 and July 2023, 4,982 detainees were transferred to other prisons in order to reduce prison overcrowding. It was thus able to report a decrease in the average overcrowding rates in February 2024 as compared to April 2023.

ii) reinforcement of the Probation Service

In the probation system, 342 new staff were recruited by August 2024, out of the 611 foreseen in the action plan. The legislative process to adopt the status of the probation personnel has been underway since December 2022. In 2023 restrictions on recruiting new staff were imposed due to budgetary constraints.^[10]

According to their reports, data show a significant shift from custodial to non-custodial measures, reflecting the system's focus on individualised sentencing and effective alternatives to imprisonment.

iii) measures to improve social reintegration and reduce the re-offending rates

The authorities are pursuing their action to increase the efficiency of the programmes and activities aimed at assisting prisoners in their social reintegration efforts, including with support under the Norwegian Financial Mechanism. The re-offending rate has steadily decreased over the past decade and was at its lowest in March 2023 (36.75 % compared to 45.78% in 2012). This decrease is attributed to the implementation of the 2020-2024 National Strategy for the Social Reintegration of Detainees, which includes various training, education, and psychological or social support activities, with specific programmes for minors and young detainees, as well as women.

The authorities aim to further reduce these rates by implementing the findings of a comprehensive study on the causes of re-offending.^[11] The overall objective of the project is to develop an integrated set of measures to prevent re-offending, increase the responsibility of prisoners, and improve their chances of easier reintegration into the labour market and society.

This includes the development of a public policy document accompanied by an action plan based on a comprehensive analysis of the causes of re-offending.

In addition, Law No. 362/2023 empowers the NAP to develop programmes aimed at providing detainees and those placed in educational centres, who have been subject to custodial educational measures, with access to educational, psychological, and social services. Notable initiatives under this law include the “Child Project-2023” and “Vocational Training Through Practical Activities - 2023.”

iv) other measures

In June 2024, the Romanian Government adopted an amendment to the legislation to allow the monitoring of persons under judicial control and house arrest with electronic bracelets under police supervision as part of efforts to modernise the criminal justice system.^[12]

b. As regards material conditions of detention

The 2020 action plan set out a three-phase strategy to bring these into line with the requirements of Article 3. This included repair and maintenance work for 3,139 places and, by December 2024, modernising existing premises for 994 places. In the longer term, more substantial upgrades in the infrastructure are envisaged.

In their September 2023 submissions, the authorities indicated that they had met the 2021 target for modernised premises (218) and exceeded the 2022 target (the target was 85 and 218 premises were actually modernised). For 2023, the target was set at 349 premises, but no information was provided on the number of premises modernised during that period.

The authorities also stressed that the sums allocated for the preparation of meals for prisoners had been increased and that kitchen equipment had been purchased under the framework of the Norwegian-funded project “Correctional.”

The authorities have continued training prison staff and raising their awareness of the CPT's standards. In April 2024, the Council of Europe Human Rights Education for Legal Professionals (HELP) Programme, in collaboration with the NPA, launched the HELP course focused on the standards of the CPT. The course enhanced the capacity of prison staff to uphold human rights standards and prevent torture and ill-treatment.^[13]

c. As regards health care services

The action plan identified 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^[14] 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. The authorities have taken or intend to take steps to address these issues.^[15]

In their 2024 submissions, the authorities reported that defibrillators have been distributed in all prisons and that 42 medical and non-medical staff have benefitted from relevant trainings. Most prisons reported no cases of public hospitals refusing to provide medical treatment to detainees.

Regarding the staff recruitment procedure, the NPA reported that the reasons for unfilled doctor and nurses’ positions were similar to those in the general public health system.

The Council of Europe Division for Cooperation in Police and Deprivation of Liberty together with the Ministry of Justice, the NPA and the Ministry of Health are implementing a Human Rights Trust Fund co-operation project^[16] to strengthen the provision of health care and mental health care in prisons in line with the Council of Europe standards.

Under this project, an intersectoral working group developed and adopted a draft strategy and action plan aimed at attracting medical staff to work in prison system, which was submitted for adoption to the NPA on 31 March 2023. The project analysed the regulatory framework and developed recommendations for its improvement. Support has been provided to strengthen the capacity of medical and non-medical staff and multidisciplinary work. The personnel were also equipped with necessary tools and protocols. The project will be further developed in 2025.

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. The Committee and the Court found that the main problem with most of the existing centres was 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.

The action plan notably referred to large-scale work the authorities envisaged carrying out by 2025 to modernise five of the 51 existing centres and construct 26 new ones.^[17] Preparatory work is underway for the expansion and modernisation of the Central detention centre of the Bucharest Police department.

In their latest submissions, the authorities underlined that the investment targets for 31 centres are planned with the proposed creation/modernisation of 1,426 accommodation places. Regarding detention conditions, the authorities stressed that, according to national regulations,^[18] the renovation of existing facilities and the construction of new ones must comply with current legislation and international recommendations, particularly those of the CPT.

The authorities submitted that the average length of detention in such facilities has been in practice brought down to 60 days. Consultations are under way between the Ministry of Justice and the Ministry of Internal Affairs to decide on the conditions for the swift transfer of persons deprived of their liberty to prison facilities, taking into account both the issue of overcrowding and the need to ensure the proper conduct of criminal investigations.

4)     Domestic remedies

In 2014, the authorities set up a preventive remedy before the post-sentencing judge when the conditions of prisoners’ detention fall short of the domestic accommodation standards for prisoners (see CM/Notes/1310/H46-13 for details).

In response to the Rezmiveş and Others pilot judgment, the authorities also established a compensatory mechanism providing for reductions in the sentence. The Parliament abolished the compensatory mechanism in December 2019. At the 1369^th meeting (March 2020) (DH), the Committee called on the authorities to fill the gap created in the domestic system of remedies.

On 20 July 2021, the Court delivered a follow-up judgment in Polgar v. Romania, where it concluded that an effective judge-made financial compensatory remedy is available at domestic level as of 13 January 2021 for complaints related to inadequate conditions in prisons, police arrest, detention centres and during transportation between such facilities. This remedy applies to individuals who are no longer subjected to conditions allegedly in violation of the Convention.

As regards the preventive remedy, the Court reiterated its conclusion in Rezmiveş and Others according to which it was difficult to envisage that detainees can obtain redress for their situation unless there was a general improvement in conditions of detention in prisons (Polgar, § 107).

Analysis of the Secretariat

Given the recent examination of the situation as regards the payment of the just satisfaction and the individual measures, the regular submission of information on the individual measures and the Committee’s previous decisions according to which the improvements in the situation of the applicants who are still detained were closely linked to the general measures, it is suggested to focus the present examination on the question of general measures.

1)     Measures to combat prison overcrowding

The authorities have demonstrated their commitment to addressing the issue of overcrowding by providing additional accommodation places available and taking steps to start work on construction of two new prisons.

At the same time, the Committee’s concerns expressed at its March 2021 and June 2023 examinations about the increase in the prison population remain fully valid, as the number of prisoners has continued to grow, particularly in semi-open regime (in total 24,586 as of 15 July 2024 for 19,542 places). This trend might affect the authorities’ goal to resolve the issue by 2025, which might also hamper the efforts to address other deficiencies, such as poor material conditions, healthcare, and social reintegration services.

The Committee, the Court and the CPT have repeatedly emphasised the need for lasting solutions to prison overcrowding, including legislative reforms and greater use of alternatives to imprisonment. Against this background, the Committee may wish to encourage the authorities to implement comprehensive measures in this regard, in line with the relevant European guidelines and recommendations, as outlined in the most recent analysis conducted by the Secretariat in the Notes prepared in June 2023.^[19] 

The Committee may also wish to acknowledge the efforts made by the authorities to reduce overcrowding through the implementation of measures aimed at addressing re-offending.

According to the latest available information, the authorities are making significant progress in implementing reintegration programmes^[20] in cooperation with the Ministry of Justice and the National Probation Directorate, providing assistance and training to prison and probation staff to enable them to work closely together.

In this context, strengthening the National Probation Directorate by increasing its staffing levels and ensuring adequate resources for reintegration programmes is vital given the high number of cases (104,000 in total) under probation supervision, with more than 64,000 files handled daily. The need for the Parliament to adopt the legislative proposal on the status of probation personnel is of paramount importance.

Since electronic monitoring has been recognised for its potential to alleviate prison overcrowding, the authorities could be invited to provide data on the ongoing project and to inform the Committee whether they plan to extend electronic monitoring to the enforcement of sentences.

Although challenges remain, such as the increase in inmate numbers,^[21] the focus on improving the infrastructure, the expansion of the implementation of social reintegration programmes, and the shift towards probation-based measures represent significant progress.

2)     Measures to improve material conditions in prisons

In 2021, the CPT found that the material conditions in the four prisons it visited were generally poor. In response, the authorities reported that in two of these prisons (Craiova and Mărgineni) new places for detainees have been created since the CPT visit.

The significant efforts made by the NPA to maintain the existing premises in an adequate state of repair and to improve the living conditions of inmates are a positive step. At the same time, continued monitoring, sustained investment, and further improvement of the infrastructure are essential to fully comply with the Committee's requests. Challenges remain for the timely completion of the planned renovations and the construction of new prisons.

  

The Committee of Ministers may wish to invite the authorities to intensify their efforts to implement their plans in these areas.

3)     Measures to improve health care in the prison system

According to the latest submissions, the questions relating to refusals of public hospitals to admit prisoners for treatment have been resolved, with no prisoners being denied medical treatment. This is a very positive development.

In addition, the Norwegian-funded project “Correctional” has made a significant contribution to improving health conditions in prisons by equipping the prisons with defibrillators and procuring the necessary equipment, addressing the CPT findings during its May 2021 visit. 

Relying on a co-operation project implemented by the Council of Europe Division for Cooperation in Police and Deprivation of Liberty, the authorities have developed a strategy and action plan to address the longstanding problem of shortage of staff in the prison health care system. The Committee may wish to be informed whether the strategy and action plan have been endorsed and adopted, and which actions were taken to ensure its implementation. It is likewise important to receive information on the further results of the project, including the legal analysis of the regulatory framework and on the follow-up to be undertaken by the authorities.

4)     Measures concerning the system of arrest and detention centres

While efforts to improve the conditions in arrest and detention centres are being made, further measures are necessary to ensure full compliance with the Convention standards. The General Inspectorate of the Romanian Police has made progress in creating and modernising 1,426 accommodation places and implementing measures to improve living conditions, including adequate space, natural lighting, and hygiene facilities. Continued investment and adherence to legal standards are crucial to achieving sustainable improvements.

The relocation of remand prisoners to penitentiary facilities, currently under discussions between the relevant authorities, could be an effective measure to address overcrowding in detention facilities. It has the potential for rapid implementation and tangible results. The Committee may wish to be informed of the outcome of the discussions.

5)     Domestic remedies

At its last examination of this group of case, the Committee greatly welcomed the jurisprudential setting up of an effective compensatory remedy for arguable complaints related to inadequate conditions of detention and of transportation.

As regards the preventive remedy available to seek cessation of such situations, the Court’s assessment that its effective functioning hinges on further improvements across the prison and remand systems remains valid. Moreover, the absence of a functioning preventing remedy leads to a massive influx of repetitive cases before the Court.

The Committee may wish to strongly encourage the authorities to take measures aimed at reducing the prison population and keeping it at a manageable level to allow the functioning of the existing preventive remedy.

Pending the achievement of sufficient progress in this area, the authorities could be invited to reflect on avenues to strengthen the role of the post-sentencing judges since their decisions ordering the prison administration to remedy shortcomings related to detention conditions, including living space, poor hygiene conditions and access to healthcare, can have an impact on the persons who are still in detention and have continuously been suffering from inadequate conditions. 

Financing assured: YES