European Prison Litigation Network: “Any advances in the law and legislation can be undermined and must be constantly monitored.”

Published by Legal Dialogue at 21/09/2018

Source: prisonlitigation.org

We interviewed the leaders of the European Prison Litigation Network (EPLN), a leading organization that advocates for prisoners’ rights in broader Europe: Hugues de Suremain, lawyer, EPLN’s co-founder and legal coordinator, and Julia Krikorian, its coordinator of the development.

The European Prison Litigation Network was founded in 2013 by prisoners’ rights defenders and researchers specialized in the prison field (mainly from France, Belgium, Italy, and Russia), with the aim of protecting the rights of prisoners in Europe through strengthening their judicial protection. We mean here Europe in the sense defined by the Council of Europe, that is to say, all countries that are members of the Council of Europe, from Russia to Spain through the Balkans and up to Northern Europe.

The founders had 10 to 15 years’ experience in defending the rights of detainees in their countries and felt that it was essential to set up a network on the European level.

EPLN’s Philosophy

Several considerations guided the organization’s creation.

There was a twofold strategic need. First, comparative law is a decisive factor in the idea to change the case law of the European Court of Human Rights (ECtHR), which is the main lever for transforming national prison systems. However, the production of comparative law studies in this field was very deficient and largely in the hands of networks representing national prison administrations, and these were not very favorable to strengthening prisoner rights… The second strategic necessity is the particular moment in which we find ourselves, which marks an increase in the role of the principle of subsidiarity in ECtHR case-law following attacks by a growing number of States that call into question the Court’s legitimacy. The consequence is that European case law in prison matters is likely to lose its dynamism, with national courts regaining a key role. The ability of prisoner rights advocates to use comparative law to promote the circulation of the most protective standards is therefore crucial.

Another substantive consideration was essential and motivated a constant concern to fully involve social science research centers. The discourse on prison reform is contemporaneousto the birth of the prison in the penal arsenal. Often, the developments are purely formal, and allow the system to avoid more fundamental transformations that would really call into question the discretionary power of the administration. Sometimes even changes introduced in the name of human rights lead to a worsening of the situation of detainees. For example, structurally, the strengthening of the right to the protection of detainee integrity has resulted in a strengthening of the administration’s powers to exclude those who disturb, to subject them to increased control, etc. It is our responsibility as practitioners contributing to the production of standards by the judge, to question the consequences such standards have in practice or at the political level.

In other words, the philosophy of the organization is as follows: we believe that litigation is an important and indispensable lever for transformation in terms of limiting arbitrary treatment in prison and it is our responsibility to arm it in a context of widespread mistrust of human rights. Nevertheless, litigation is only an instrument, which must be complemented by a critical and scrupulously documented analysis of the functioning of the prison and its social function.

EPLN’s Activities

The fields of EPLN’s activity are of three types. First, we coordinate strategic litigation at domestic level and at the European Court of Human Rights in Strasbourg with our members and partners in the respective countries. The idea behind is to advance case-law at the ECHR and in end effect to spark reform of the prison system in the countries of the CoE. We also coordinate and support capacity building actions for NGOs and law practitioners through trainings or seminars we co-organise with our partners. For example, for several years now we have been working with the Russian NGO Sutyazhnik in Yekaterinburg to co-organize sessions of the biannual Ural Human Rights Schools. We have conducted about 40 such seminars in the countries of the European Union since 2015, either ourselves or by financing our partners. Our third area of activity is research. We usually initiate or are invited to participate in research projects on topics which we consider particularly relevant and with potential leverage for prison reform. This research aims at supporting the litigation work, or at measuring the impact of reforms on the field.

The EPLN has currently 19 NGO partners in its network. But we have also set privileged partnership with several university research centers in Europe (for example in Florence, Madrid, Brussels, Paris, Strasbourg, Dortmund, etc.). The research is done by researchers from our NGO partners or from the research centers in the considered countries. We usually identify and define the subject and frame of the research with our partners, both practitioners and researchers. They are the ones who really know the field and its priorities. These are subjects that are highly problematic in all or part of the States of the network but on which case law is unlikely to evolve without the mobilisation of scientifically structured knowledge.

EPLN Membership

We have two types of possible engagement in the EPLN. We have so-called “full members”, who can be individuals and also NGOs. Full members pay a membership fee and can take part in the General Assembly. They can elect the board and take part in the strategic discussions. To become full member, you just need to address a request to the current members or to the Secretariat, which then will be reviewed by the Board. This is the full membership option.

And then we have another status, which is that of “network partner”. These organizations don’t have the right to elect the Board, but they are involved in the network’s strategic planning and in deciding which topics are to be prioritized. We also invite them to join the General Assemblies, at which we try to gather our members and partners once a year physically. Of course, it is difficult to meet physically with all members and partners regularly, but still we keep in electronic contact with our members and partners ahead of the strategic meetings to make sure that all topics are brought to the attention of the Board or the General Assembly on time. For a partner wanting to become a “partner of the network”, you also just need to send a request to another member or to the Board or to the Secretariat, and the Board reviews the request and gives approval depending on the field of activities and the priorities of the organization, and their coherence with EPLN’s mandate and strategy.

EPLN’s Research

The research we’ve done so far is mainly comparative. The research project which initially launched the EPLN was a research on systems of remedies available to prisoners in ten countries of the European Union. This project was led by the University of Florence with involvement of universities and NGOs from Ireland, Belgium, France, Italy, Spain, Bulgaria, and Romania. The project produced a comparative analysis, and in 2016 the EPLN co-organized, with the Universities of Florence and Strasbourg, a conference at the European Court, with the presence of judges to address the issue of systems of remedies available to prisoners. It was the first conference at the Court on prison issues. Building on results of this comparative research, we identified a further need to study and analyze the conditions for really accessing these remedies and mechanisms for prisoners. Even in countries where mechanisms are in place, the main determining factor for really accessing the court for the prisoner who has a complaint is access to a lawyer or to legal assistance.

In September 2017, we launched a new research project in nine countries of the European Union in cooperation with universities and NGOs active in the field, on access to legal aid for detained persons, with a focus on pre-trial detention. What are the legislations in place in these nine countries, how it actually functions in practice for the detained person to access financial legal aid, to access a lawyer, to get legal assistance from NGOs, etc. This is an ongoing research, which will end in the beginning of 2019. It involves the Czech Republic, Bulgaria, Poland, the Netherlands, Italy, Belgium, France, Spain, and Germany. On December6-7 this year, we will be organizing the second conference at the European Court on access to rights for prisoners to present the results of our research, and, of course, to put these results up for discussion with the European bodies in charge of framing procedural safeguards in the European Union law for accessing legal aid for prisoners. Although this research is focused on EU countries, the idea of the EPLN remains to circulate these analyses and strategies with our partners and members outside the European Union. So we want, for example, to invite one of our partners from Russia to the conference at the Court in December, to bring his own perspective on this particular issue. Roman Kaсhanov is a lawyer in Yekaterinburg with extensive experience of litigation in penitentiary issues, and he will be joining the conference (with the support of the EU Legal Dialogue travel grant of the EU-Russia Civil Society Forum).

EPLN’s Work in Russia

We have been working in Russia from the very beginning of the EPLN. Russia is indeed a country where access to rights and the protection of the fundamental rights of prisoners is particularly problematic. We have several partners there, in Yekaterinburg, Chelyabinsk, Irkutsk, and Moscow, and we are in constant contact with them. All are particularly concerned by the latest developments of the system of the Public Monitoring Commissions (PMC), that is to say its actual collapse. The latest case of torture in a Yaroslavl prison which resonated a lot in the media is just another example of what is happening in several regions of Russia. We also want to underline to the Council of Europe bodies that a really independent mechanism of prison control is also absolutely necessary to enable prisoners to access courts and justice in cases of ill-treatment and torture. The collapse of such a mechanism makes it extremely hard if not impossible for prisoners to access lawyers and to lodge complaints with domestic courts and the ECHR. We have already conveyed this concern to the Council of Europe bodies in May 2015 through a resolution adopted by participants at a human rights school in Yekaterinburg. We will continue to do so.

In addition, we have intervened in a number of cases before the European Court and domestic courts, involving issues as diverse as freedom of expression in reporting ill-treatment in the press, the fate of “lower-caste” detainees, access of life-sentenced prisoners to long-term family visits, the prohibition of detainees from being members of a public association and the structural problem of prisoners’ lack of personal participation in hearings.

Strategic Litigation

The concept of litigation is clear—it is about bringing cases to court. The EPLN focuses on strategic litigation. It means identifying few but strategic cases that have most potential for bringing advances in the case law, whether at the domestic level or in ECHR case law, on crucial aspects of life in detention or the functioning of the criminal justice system. In ECHR case law we can observe that many prison cases are quite similar and repetitive, for example such as material conditions of detention etc. There are however some topics hardly touched upon in the ECHR prison case law. Strategic litigation is here to identify and fill in the gaps with new case law that can strengthen the protection of prisoners’ fundamental rights in all countries of the CoE.

Concretely the EPLN is here to offer a platform for coordinating these strategies between law practitioners. Its role is also to bring in expertise and analysis from different countries to support the preparation of litigation. Very practically for a given case, we often proceed in such a way that we bring together a small working group of jurists and researchers from different relevant countries to the topic to prepare the case, and the writing of the appeal is coordinated and drafted by a jurist.

On complex problems that occur in different countries and require long-term work, we set up projects that produce scientific work, legal doctrine, advocacy opportunities, etc.

Success Stories

One successful mobilization was the one we led at the conference of heads of government in Brussels on the future of the European Convention on Human Rights mechanism. We brought together 45 leading organisations in the defence of the rights of detainees in Europe. Some points of the political declaration reflect some of our demands. The example of Bulgaria is also interesting. We were engaged with our partner in that country, the Bulgarian Helsinki Committee (BHC), in a European project on effective remedies in prison matters. In this context, the BHC was able to obtain a pilot judgment on detention conditions, and to influence the reforms that followed, by organizing seminars involving lawyers from the European Court, political leaders, foreign researchers, and more generally by being able to rely on the teaching of foreign experiences.

But, on the whole, we are committed to actions that aim to bring about significant changes in the functioning of the penal and penitentiary systems, and such changes take years. In this perspective, the greatest accomplishment is to be able to bring together practitioners from very different systems, legal researchers and sociologists on subjects of common interest. Then the dynamics of action are created and our organizations are used to tenaciously conduct difficult battles.

Current Trends in Europe

The latest SPACE Survey of the Council of Europe shows that the incarceration rate grew between 2015 and 2016, while this rate had previously fallen every year since 2012.The cause seems to be to be sought on the side of an increase in the length of detention periods. But these figures cover very diverse and sometimes quite volatile national trends. In the penal field, one used to point out Scandinavian exceptionalism, and the punitive nature of the former Soviet states’ criminal system. Since the 2000s, the former Soviet countries have experienced a significant decline in their prison populations which, however, generally remain at a very high level. The Netherlands and Germany have joined Scandinavia as virtuous countries in terms of criminal statistics. Germany is experiencing a long period of prison deflation, with a 22 percent decrease in the last 13 years, which is partly explained by a form of penal moderation on the part of judges and less use of pre-trial detention. At the opposite, some Western European states have seen a “punitive turn” (with harsher penalties, especially for sexual offences), with the result that their prison populations have increased, sometimes significantly (France, United Kingdom, Portugal …).

Beyond the figures, in many countries we are confronted with what has been described as a “dehumanization of criminal law” as a result of the increased emphasis on the notion of dangerousness. This justifies neutralization measures that sweep aside the question of the conditions under which the person returns to society, and more generally reflect a very pessimistic conception of the human person and which obviously leaves little room for human rights requirements.

Another major trend is that of austerity policies conducted almost everywhere and which have multiple consequences on the functioning of prisons, reducing prison staff or integration services, limiting activities in detention and access to courts, etc. The most striking example is the United Kingdom, where the policy of outsourcing prisons to private contractors has led to a chaotic situation.

In this gloomy picture, it should nevertheless be stressed that the case law of the ECtHR has advanced a number of rights, especially in terms of material conditions and access to health care. This Court has taken an important step by prohibiting incompressible life sentences and obliging States to take positive measures to effectively enable life-sentenced persons to reintegrate society.The question is what will be the medium- and long-term impact on this process of recognizing the rights of policies to combat terrorism and extremist radicalization.It is to be feared that the immense political pressure in this area will lead to a halt in the dynamics of case law. In France, the regressions are massive, in the sense that we have seen a number of rights that we had obtained with great difficulty being neutralised over the course of a few months.

As for the question of a ranking of countries, such an exercise would not really make sense without circumscribing the terms of the comparison. For example, the Netherlands saw their prison population halved between 2006 and 2017. The rights of detainees are largely recognized and there is a recourse system assessed as effective by the Council of Europe. At the same time, they created facilities for persons prosecuted or sentenced for terrorist offense, where the security regime applied on a daily basis should be qualified as inhuman treatment within the meaning of Article 3 of the ECHR. In analyzing a given national situation, the different aspects of criminal and prison policies must be taken into account: often, a criminal policy favorable to short-term offenders is a counterbalance to a very severe policy towards long-term sentences (scissor effects); similarly, a system based largely on open facilities may include very oppressive high-security prisons. Having said that, of course, there are major characteristics that distinguish States: the configuration of the national prison systems is largely the result of their own history and recent internal political dynamics. The Russian prison system is unique in that violence is a structuring dimension of prison organization, with the administration contributing to the maintenance of a prison subculture to establish its authority, if necessary through intimidation and torture.

Successful Prison Reforms

As an example, the reform of the Italian prison system was actually an effect of the European Court pilot judgment delivered against Italy, and in indeed led to a decrease in its prisoner population.Measures have been taken to limit the use and duration of pre-trial detention, increase remissions of sentences and reduce the severity of drug repression. However, after a sharp decline in the prison population, it is increasing again. There is a risk that the political will that could consolidate the positive effects of the pilot judgment will be lacking.

In general, successful reforms are those that frankly assume the responsibility of opening the prison to the outside world and applying general law in prison.

The reform of the prison health care system in France in 1994, which led to the linking of prison medicine to the general health system, is a typical example. Public decision-makers have managed to avoid the security and management requirements of the prison administration and the reform has achieved a considerable improvement in the quality of care.

The reform of settlement control in Ukraine, which effectively allows NGO members and journalists (beyond members of the preventive mechanism) to carry out visits, has led to an overall reduction in violence and has had a significant impact on the use of torture.

In Russia, the creation of the Public Monitoring Commissions was in 2008 globally a positive change, and created a powerful tool for prisoners’ rights defenders to prevent torture and ill-treatment in prisons and protecting rights of prisoners. Several cases of torture were revealed by PMC members, such as the Magnitsky case or the Kopeysk case. Now the system is still in place but has been totally undermined, and is about to collapse. So it is also a way to say that any advances in the law and legislation can be undermined and must be constantly monitored, because unfortunately movements backwards can happen any time.