Natisni vsebino

Rights of people deprived of their liberty

15.10.1998 18:04
Category: papers

St. Georges Bay, Malta, 7 - 9 October, 1998

Ivan Bizjak, Ombudsman of the Republic of Slovenia

Dealing with the problems which arise with various forms ofdeprivation or restriction of liberty is not the responsibility of allEuropean ombudsmen. It is however without a doubt an extremelyimportant and sensitive area, since every deprivation or restriction ofpersonal freedom is a very serious encroachment by the state on therights of the individual. Even if we deal with the issue ofencroachments on personal freedom from the point of view of correctbehaviour by the state, we cannot overlook the specific nature of thisrelationship. It is therefore worth devoting special attention to it.

 I begin this paper by defining the groups which have had theirpersonal freedom taken away or restricted in various ways and forvarious reasons. I then introduce the international legal mechanismswhich represent the basis for the protection of the rights of thesepeople. This is followed by a comparative look at the powers ofombudsmen in individual countries in the area of the deprivation andrestriction of liberty. I then offer for further discussion someexperiences and interesting cases from certain other countries, whichillustrate the possibilities open to the ombudsman in the area which isthe subject of this paper. I conclude by presenting certain questions,challenges and dilemmas.

1. Definition of the problem

When talking about people deprived of their liberty I have in mind the following:

    * people in police detention
    * people detained while awaiting trial (remand prisoners)
    * convicts serving prison sentences
    * people with mental disorders detained against their will for treatment
    * people doing compulsory military service.

There is no doubt that the first four categories are persons deprivedof their liberty, but a type of restriction of personal freedom is alsopresent in the case of soldiers, and therefore both in this paper andin practise I categorise them among people to whom special attentionneeds to be devoted because of a restriction of their personal freedom.

People deprived of their liberty are as a result of this undoubtedly aspecially sensitive group. In criminal proceedings, both the Europeanconvention and domestic legislation offer them numerous proceduralguarantees and legal remedies, which however are not in themselvessufficient in practice. Because of the deprivation of their personalfreedom they are so restricted in the use of even these remedies thatthey cannot always use them effectively. Thus an important aspect ofexamining the situation of these people is the examination of thepossibilities for the effective use of all legal remedies available tothe individual in accordance with procedural regulations. Counsellingand information as to all the possibilities available in givensituation is of a great importance as well. The rights of peopledeprived of their personal freedom can be dealt with three aspectsseparate:

    * reasons for deprivation of liberty
    * treatment of the person
    * living conditions - conditions in institutions where deprivation of liberty is effectuated.

From the point of view of the ombudsman, the last two aspects areparticularly important. The actual deprivation of liberty is in mostcases a matter of legal proceedings which only partially fall under thepowers of the ombudsman and in some countries not at all. For soldiers,the issues under the first group do not apply at all. For this reason Ishall only deal in part with the issues relating to the ordering,extension and revoking of deprivation of liberty.

With regard to the treatment of detained persons and living conditions,both reactive and proactive or preventive activities by the ombudsmanare important. Thorough investigation on the basis of individualcomplaints enables the rectification of irregularities in concretecases and exposes possible abuses to which attention needs to be paid.At the same time the possibility of inspection of prisons, remandcentres and psychiatric hospitals, combined with in privateconversations with those who desire such conversations, isexceptionally important. During these visits, beside problems directlyrelated to the deprivation of liberty, individuals frequently drawattention to irregularities in preliminary proceedings, material andother problems of their families, health problems and suchlike.Experience shows that an active presence among people deprived of theirliberty produces a lot of work for the ombudsman. Part of this workturns out to be unnecessary owing to frequent cases where individualsabuse the possibility of direct complaint to make untrue statementsabout irregularities with the desire of gaining privileges to whichthey are not entitled. Nevertheless the accessibility of the ombudsmanis particularly important to people in detention, while for theombudsman only direct contact with the environment in which detaineeslive enables him to adjudicate on their complaints.

When talking about the role of the ombudsman in relation to theprotection of the rights of people in detention, it is important toconsider both the content and method of work with this sensitive groupof people. I shall therefore present in the following section the legalframeworks for this work and the functions of the ombudsman whichderive from these frameworks. I shall then look at the powers ofindividual ombudsmen in this area and close by describing somepractical experiences and findings.

2. Legal framework for the protection of the rights of people

deprived of their liberty/people whose personal liberty has been


Beside domestic legislation, which varies in its details fromcountry to country, a range of international legal instruments andmechanisms exist which guarantee and protect the right to personalfreedom and determine separately the rights of those people who havebeen legally deprived of their liberty. Although there are differencesfrom country to country with regard to the relation of domesticlegislation to international legal instruments, the conventions of theCouncil of Europe at least are binding for all member states which haveratified them. This applies in particular to the European Conventionfor the Protection of Human Rights and Fundamental Freedoms (ECHR), theinstitutions based on it and their case-law. For this reason my reviewof the legal framework for the protection of the rights of peopledeprived of their liberty shall concentrate on the ECHR and thecase-law which has been developed by the European Commission and theEuropean Court of Human Rights. Naturally a detailed analysis of allthe provisions and of the administration of justice would go far beyondthe scope of this report, so I shall therefore limit myself to a roughoutline in which I selectively cite certain provisions, principles andrulings which seem important for the work of the ombudsman in the areaunder consideration.

Deprivation of liberty

I take as a basis in my consideration of the rights of peopledeprived of their liberty the European Convention on Human Rights.Article 5 of this convention guarantees the right to personal freedomand details cases where removal or restriction of this right ispermitted. At the same time it cites certain conditions for thedeprivation of liberty and certain procedural requirements for suchcases. It is probably no coincidence that this article of theconvention is one of the longest and most detailed. The right topersonal freedom is the right which enables the realisation of numerousother guaranteed rights. It is therefore justifiably known as ‘thecornerstone of the protection of the individual’ (Gomien). The right toliberty and personal security is defined in an almost identical mannerin other instruments of human rights.

The lawful deprivation of personal liberty does not encroach on otherpersonal rights. The lawful deprivation of personal liberty does not ininself include the deprivation of any other human rights. All treatmentto which people are subjected must respect the personal dignity of theindividual and the rights based on this. This principle is frequentlyvery difficult to assert in practice. It can even happen that theombudsman’s efforts to rectify irregularities in prisons meet with anegative public response.

All rights which can be exercised even under conditions where a personhas been deprived of his personal liberty continue to be enjoyed by theindividual. Exercising them can of course be restricted or madedifficult, particularly where the rights of others are concerned, butthe lawful deprivation of personal liberty cannot be in itself a reasonfor the prevention of the assertion of other guaranteed rights. Inrelation to remand prisoners and people in police detention it isnecessary to lay special stress on the right to be presumed innocent(Art. 6/2, ECHR). The right to effective legal remedy is particularlyimportant for all people deprived of their liberty (Art. 13).

Treatment of detainees - prohibition of torture

The list of international mechanisms specially oriented towardsprotection against torture or maltreatment is an extensive one. It doesnot need to be stressed that the people especially exposed to this arethose who have been deprived of their personal liberty.

When talking about people deprived of their personal liberty it isworth remembering Article 3 of the European Convention on Human Rights,which prohibits, without exception, torture, inhuman or degradingtreatment or punishment.

Despite the mechanisms established by the European Convention, theCouncil of Europe considered it necessary to establish a specialmechanism for strengthened protection against torture and mistreatment.Alongside the United Nations Convention Against Torture and OtherCruel, Inhuman or Degrading Treatment or Punishment, which came intoeffect in 1987, the Council of Europe passed the European Convention onthe Prevention of Torture and Inhuman or Degrading Treatment orPunishment in February 1989 to protect the rights deriving from Article3 of the ECHR. The convention establishes a special mechanism, theCommittee for the Prevention of Torture and Inhuman or DegradingTreatment or Punishment (CPT). The member states of the Council ofEurope passed the convention ‘convinced that the protection of personsdeprived of their liberty against torture and inhuman or degradingtreatment or punishment could be strengthened by non-judicial means ofa preventive character based on visits.’ In addition to the obligationto report to the Committee Against Torture deriving from the UNconvention, the member states agreed to visits and inspections by theCommittee founded by the Convention of the Council of Europe. Itfollows from the above extract that the convention and the work of theCommittee are particularly oriented towards the protection of peopledeprived of their personal liberty. While ECHR organs deal withcomplaints from people who claim that their rights under Article 3 ofthe ECHR have been violated, the CPT is above all intended to preventill-treatment from occuring.

Even the title of the convention on the prevention of torture containsvarious types of conduct prohibited by the convention: torture, inhumantreatment and degrading treatment or punishment. The European Court hasdefined and classified these types of conduct as follows:

Torture: deliberate inhuman treatment causing very serious and cruel suffering.
Inhuman treatment: the infliction of intense physical and mental suffering.
Degrading treatment: ill-treatment designed to arouse in victimsfeelings of fear, anguish and inferiority capable of humiliating anddebasing them and possibly breaking their physical or moral resistance.

It is clear that in his work the ombudsman encounters conduct which hasthe characteristics of one of the levels of prohibited treatment givenabove.

It is worth stressing that Article 15 of the ECHR prevents individualcountries from abolishing or limiting the rights which derive fromArticle 3. Neither is there room in this area for any degree ofdiscretion (the margin of appreciation) in individual countries. Thereis no basis for this in the provisions of this article. If I may quotefrom a recently published paper:

‘Might some States by virtue of their “margin of appreciation” be ableto maltreat more than others before overstepping the limits set byArticle 3? Such a relativisation of the scope of one of theConvention’s most fundamental rights would not only be both absurd anddisturbing; it would also occur in the very midst of the westerncommunity of nations that is fond of stressing the universality ofhuman rights on the international scene. If ever there was an areasymbolising such universality, it is indeed the one covered by Article3.’

In cases involving torture or inhuman or degrading treatment there areno special reasons for deviation from country to country. Thus theexperiences and findings of ombudsmen can be a mutual encouragement foractivity in this field.

Because the functions of ombudsmen, where dealing with people deprivedof their liberty forms a part of their responsibility, are orientedtowards the same goals, it is worth remembering that ‘the work of theCPT is guided by the following three principles:

i) that the prohibition of ill-treatment of persons deprived of their liberty is absolute
ii) that ill-treatment is repugnant to the principles of civilised conduct, even if used in milder forms
iii) that ill-treatment is not only harmful to the victim but alsodegrading for the official who inflicts or authorises it and ultimatelyprejudicial to the national authorities in general.’

It is also interesting to look at the activities which the CPT carriedout when visiting an individual country. The reports show that the CPTestablishes the actual state during its visit in the following ways:

i) it examines the general conditions in establishments visited;
ii) it observes the attitude of law enforcement officials and other staff towards persons deprived of their liberty;
iii) it interviews persons deprived of their liberty in order tounderstand how they perceive (i) and (ii) and hear any specificgrievances they may have;
iv) it examines the legal and administrative framework on which the deprivation of liberty is based.  

In its report the CPT, as necessary, ‘recommends measures designed toprevent the possible occurrence of treatment that is contrary to whatreasonably could be considered as acceptable standards for dealing withpersons deprived of their liberty.’

In carrying out its functions, the CPT has the right to avail itself oflegal standards contained in not only the European Convention on HumanRights but also in a number of other relevant human rights instruments(and the interpretation of them by the human rights organs concerned).At the same time, it is not bound by the case-law of judicial orquasi-judicial bodies acting in the same field, but may use it as apoint of departure or reference when assessing the treatment of personsdeprived of their liberty in individual countries.

I have described in some detail the principles and method of operationof the CPT because they can also serve as a guideline for the work ofthe ombudsman in the area of assessing the situation in institutionswhere people are detained, in detecting irregularities and inpreventing ill-treatment.

In dealing with the issue of detained persons there is a range ofdocuments which can be of help. In the form of rules, recommendations,principles or guidelines these define in more detail the permissibletreatment of detainees. The United Nations has passed, among others,standard minimal rules on the treatment of prisoners (1995), basicprinciples for the treatment of prisoners (1990), basic principles forthe protection of all detainees or prisoners (1988), United Nationsrules on the protection of minors deprived of their liberty (1990),principles of medical ethics on the role of medical personnel,particularly doctors, in the protection of prisoners and detainedpersons against torture and other forms of cruel, inhuman or degradingtreatment or punishment (1982) and a code of conduct for policepersonnel (1979).

As regards the Council of Europe, Recommendation No. R (87) recommendsto member states that they be guided in internal legislation andpractice by the European Prison Rules. These rules can serve as apractical aid in checking the suitability of regulations, procedures,conditions and treatment.

It is also worth mentioning two more recent recommendations from theParliamentary Assembly of the Council of Europe: Recommendation 1245(1994) on the detention of persons pending trial, which because of thepresumption of innocence gives certain guidelines for ordering andimplementing detention; and Recommendation 1275 (1995) on theconditions of detention in Council of Europe member states, derivingamong other things from prison overcrowding, which recommends specialattention for sensitive categories of prisoners.

Special features of the issue of detained persons with mental disorders

In the case of prisoners and detainees we are mainly interested in howpeople are treated, since the deprivation of liberty is based on acourt ruling against which legal remedies exist. With people placedagainst their will in psychiatric hospitals, however, the furtherquestion arises of the correctness of the commitment procedure andverification of the justification of detention. National legislationsdiffer, but for my own country may I say first and foremost that thelegislation is unsuitable and does not determine in sufficient detailthe commitment procedure and the legal supervision of detention.

The convention permits lawful detention for psychiatric patients. Itdoes not prescribe special conditions or define the term ‘unsoundmind’. The legislation which regulates detention without the consent ofthe individual differs from country to country. The usual condition ofdetention is that the individual presents a serious threat to himselfand others and that this danger cannot be circumvented by milder means.Checking these conditions presents a practical problem. The institutionof patient advocacy which exists in some countries makes an importantcontribution to more suitable judgement and establishes ‘equality ofarms’. Without it the patient is in a markedly inferior position. Inany case, in such cases the legal protection of the right to personalfreedom must be guaranteed.

The case-law of the European Court specifies three minimum conditions which contain the notion of ‘unsound mind’:

    * the applicant must be ‘reliably shown’ to be ofunsound mind (‘which calls for objective medical expertise’);
    * the nature or degree of the mental disorder must be such as to justify the deprivation of liberty;
    * continued confinement is only valid so long as the disorder persists.

The medical conditions can change with time and therefore the reasonsfor detention can cease to be valid. It is therefore important that inaccordance with Paragraph 4 of Article 5 of the ECHR effective meansexist for examining the reasons for continued detention. If there is noother means available, the ombudsman can advise the affected party orhelp him use these means.

Recommendation No. R (82) of the Committee of Ministers of the Councilof Europe recommends to member states the rules which should be takeninto account when changing the legislation which stipulates the legalprotection of persons ‘suffering from mental disorder placed asinvoluntary patients’. The rules relate to placement for treatment,method of treatment and patient rights. In Slovenia’s case I can saythat these rules are not observed in their entirety, and that thereforeas ombudsman I am striving for the adoption of suitable legislation.The passing of regulations in member states which guarantee therespecting of the human rights of psychiatric patients is also calledfor by Parliamentary Assembly Recommendation 1235 (1994), which at thesame time proposes new rules to the Committee of Ministers.

The question raises itself as to whether the time has come to shape thekey rules regarding the rights of psychiatric patients into a specialconvention guaranteeing a uniform (higher) standard of rights for thesepeople.

3. Role of the ombudsman in the protection of the rights of people deprived of their liberty

What can the role of the ombudsman be, within the framework described, and how should he function?

The role of the ombudsman is a dual one: he identifies violations ofrights and works to eliminate violations and their consequences, whileon the other hand he works preventively.

The ombudsman can be an effective domestic mechanism for the preventionof torture, inhuman and degrading treatment or punishment. He takeseach case as it appears, contributes to the realisation ofrecommendations and assesses the situation in this area - also byinvestigating alleged irregularities. Through his opinions, proposalsand recommendations he can contribute to the improvement of regulationsand practices relating to persons deprived of their liberty.

Let us take a brief look at certain concrete areas of work andfunctions deriving from the legal framework described and the concretework of ombudsmen. It is a kind of incomplete ‘check-list’ which can besupplemented and set out in more detail in the light of the specialfeatures of each country and practical experience.

Supervision of the correctness and lawfulness of police work relatingto detention covers checking the reasons for deprivation of liberty,treatment of the detainee, and living conditions during detention, andshould involve detention because of breaches of public order orsuspicion of criminal activity. Establishing the correctness of aprocedure is frequently very complicated, especially investigation ofalleged overstepping of authority or unjustified use of force. It istherefore important to request from the police concurrent documentationof the procedure, which at the same time has a considerable preventiveeffect.

Establishing unreasonable duration of court procedures is importantparticularly in cases where the accused are awaiting trial indetention. Detention is one of the most serious encroachments on humanrights and must last for the shortest time possible, not least becauseof the presumption of innocence and the possibility of acquittal. Otherunjustifiable delays can occur in court procedure, for example failureto hand down a verdict in the proper time, which can influence theexercising of the right to appeal. The majority of ombudsmen have thepower to supervise the judiciary regarding the course of procedure andthus can intervene in such cases.

Giving opinions and proposals to courts in the role of an ‘amicuscuriae’ is a less common function of ombudsmen. Where it exists it ispossible in justified cases to give an opinion on the reasonableness of(extending) detention, and to draw attention to circumstances whichspeak in favour of revoking it, or to propose procedural solutionswhich should reduce the length of the procedure and thus the durationof detention.

The living conditions of detainees are frequently worse than those ofprisoners, and their possibility of contact with the outside world isalso more restricted. It is worth checking whether these restrictionsare justified - they may only be based on reasons relating to thecourse of criminal proceedings. Disproportionate and unnecessaryrestrictions are contrary to the presumption of innocence and canconstitute degrading treatment.

It is also worth examining the use of procedural guarantees and thelegal remedies guaranteed to the accused party in legal proceedings.The measures that can be taken by the ombudsman in such cases depend onthe powers he has.

Special attention must be paid to the broad area of the treatment ofprisoners and detainees by prison authorities. This covers the use offorce, dealing with conflict situations, settling requests andcomplaints relating to conditions in the prison, enabling work,protection at work and the investigation of accidents at work,transparency of regulations on house rules, predictability andconsistency in ruling on privileges, suitability of food and the mannerin which it is distributed, accessibility of regulations andinformation important to prisoners, accessibility of legal aid andsuchlike. Many complaints and conflict situations are connected with alack of communication between the prison administration and theprisoners. By dealing with prisoners’ complaints it is possible toestablish the response of prison authorities in resolving problems.Encouraging faster resolution of problems is an important function ofthe ombudsman.

Living conditions in prisons and detention centres are a frequent topicof justified (and unjustified) complaints. There is no doubt thatresources are limited, but at least some inadequacies can frequently berectified. It is worth devoting special attention to factors whichaffect health. The provision of suitable medical care is frequentlyinadequate or late. It is worth devoting special attention to the careof detainees with mental disorders.

Minor deprived of his or her liberty is entitled to treatment whichtakes into account ‘the needs of people of their age’. It is worthchecking the implementation of the provisions which relate to minors asa particularly vulnerable category, both in relation to policeprocedures and the implementation of detention and criminal sanctions.

It is worth encouraging the abolition of all unnecessary restrictions and prohibitions.

With regard to involuntarily hospitalised psychiatric patients it isimportant to monitor the consistent following of the prescribeddetention procedure, living conditions and the possibilities for theprotection of rights. Detention must cease when the reasons for itcease to exist.

The ombudsman also needs to devote attention to people who aredetained, or whose freedom of movement is restricted, in social careinstitutions (homes for the eldery, etc.).

With regard to conscripts it is important to check the effectiveness ofthe mechanisms for the protection of rights and the rectification ofirregularities according to the regulations which govern this area.

In all the areas mentioned it is worth analysing regulations, and whendealing with complaints to identify inadequacies and propose necessarychanges.

Many irregularities can be prevented by regular training of authorisedpersonnel, especially management personnel. The ombudsman can encouragethis type of training.

Because of the specific situation of people deprived of their liberty,certain special methods of work are also necessary in this area. Oneprecondition of successful work is appropriate powers. It is importantthat the ombudsman can:

    * inspect the premises of institutions which operate detention of whatever type
    * talk in private with complainants
    * talk with all other detainees who so wish
    * correspond uncontrolled with complainants.

Visits, including unannounced visits, combined with conversations, givethe possibility of establishing the actual situation and the mainproblems. Immediate checking of the statements of the affectedindividuals is an important factor. A personal conversation with thedetained person who has lodged a complaint with the ombudsman can clearup numerous details, and above all it can separate out at a very earlyphase all the statements of the complainant which do not have a factualbasis. In this way the presence of the ombudsman or members of his/herstaff becomes sufficiently frequent for an atmosphere of trust to beestablished and to create conditions for the immediate detection andrectification of irregularities. Immediate reaction is especiallyimportant in dealing with applications from detained persons.

Not much has been said about work with soldiers. With regard to themethod of work I should mention the practice of the specialisedmilitary ombudsman in Germany (Die Wehrbeauftragte des Bundestages),who spends several days in succession with an individual unit.

4. Review of the areas of jurisdiction of European ombudsmen relating to the deprivation and restriction of personal freedom

In order to present as fully as possible the work of ombudsman in thearea of the rights of people deprived of their personal liberty Iprepared a short survey containing questions on jurisdiction in thisarea, powers, main findings and possible special reports andinvestigations (I would like to thank all my colleagues who throughtheir cooperation contributed their share to this report).

The answers on jurisdiction show that the investigation of complaintsfrom people in police detention, remand prisoners and prisoners fallswithin the framework of jurisdiction of almost all institutions, withthe exception of Ireland and, because of its specific situation,Greenland. The Irish ombudsman has indirect responsibility for the areaof psychiatric patients in that he examines the ways in which theminister of health and the inspector of psychiatric hospitals fulfiltheir obligations to detained patients. The rights of soldiers formpart of the responsibility of all except the Norwegian and Malteseombudsmen - and of course the Icelandic ombudsman, since Iceland doesnot have its own army. The jurisdiction of ombudsmen is restricted incertain areas in some countries. As regards detainees and prisoners, inAustria the ombudsman can only inspect living conditions.

Denmark is an interesting case. The Ombudsman Act enforced at thebeginning of 1997 abolished historical restriction of ombudsmanjurisdiction regarding counties and municipalities and extended hisjurisdiction to psychiatric institutions run by local authorities.

For certain categories some countries have different or additionalmechanisms for the protection of rights. Their position differs, andwith it the possibility of carrying out their functions independently.Complaints against the police are dealt with in Ireland by the PoliceComplaints Board, which comprises nine people representative of thelegal profession and general public, including a senior police officer.The decision to end the detention of psychiatric patients in thiscountry is made by the minister of health. In some countries soldierscan turn to a special ombudsman responsible for the armed forces - inNorway for example, where there is an Ombudsman for National Defence.Soldiers’ complaints are also dealt with by the Ombudsman’s Board (butnot the Parliamentary Ombudsman). In Germany, too, there is aParliamentary Commissioner for the armed forces. Complaints can usuallyalso be made along the line of command.

As regards the powers of ombudsmen in the categories underconsideration, all ombudsmen who responded to the survey state thatthey may inspect premises, visit complainants and talk with themin-private. They may also correspond freely with them. The onlyexception is Ireland, because of the limiting of responsibilities. Herethe ombudsman can visit complainants and talk to them while exercisinghis indirect jurisdiction over the rights of psychiatric patients. Thepossibility of inspection of premises also implicitly exists. InAustria the inspection of premises is limited - premises intended fordetainees and prisoners can only be inspected by the court. As regardscorrespondence only letters from prison addressed to the ombudsman areuncontrolled.

The Danish ombudsman comments that many of the individual complaints hedeals with are made during general inspections of prisons andpsychiatric institutions, when individuals have the opportunity ofmeeting the ombudsman personally. We have similar practical experiencein Slovenia, and it seems that regular visits are very important.

The survey asked, with regard to working practice, whether individualombudsmen prepared special reports in relation to the issue of personsdeprived of their liberty. I assume, of course, that this issue forms apart of their regular reports.

The Danish ombudsman prepares a special report after every inspectionof penal institutions, local prisons and psychiatric wards and includesin it his recommendations and findings. The Hungarian ParliamentaryCommissioner for Human Rights has prepared a series of reports onvarious problems from this area. The Maltese ombudsman published areport in 1997 on women’s prisons and is currently preparing a reporton the main psychiatric hospital. In Portugal the ombudsman has carriedout research into the Portuguese prison system. His report appeared in1996. This year new research will be done and a new report published.In Lithuania the ombudsman only prepares special reports at the requestof international human rights organisations and similarnon-governmental organisations in Lithuania. They cover individualaspects of the field under consideration. In Slovenia several reportshave been prepared on the situation in the individual institutions wehave visited, and their publication has aroused considerable publicattention. Special reports on this area are also prepared by theSpanish ombudsman.

Experience shows that special reports can be very effective inrectifying inadequacies - usually more so than if the problem is onlydealt with in the annual report. It is not necessary for such a reportto be addressed to parliament - what is important is that it issuitably presented to the public.

It is interesting to look at the proportion of cases relating to thedeprivation of personal freedom in the total number of cases dealt withby ombudsmen. The ombudsmen of Finland and Lithuania stand outparticularly here, with 26% and 20% of cases respectively relating topersonal freedom. Such cases account for 10% of the total in theFederation BiH. In Sweden cases relating to people in detention accountfor 8%. In several countries this proportion runs at around 5% (Norway,5.3%, Slovenia, 4.4%, Portugal. 4.2%). In Spain such cases accountedfor 3.7% of all cases in 1997, in Denmark for 1.5%, and in somecountries for less than 1% (Austria, 0.8%, Malta, 0.5%, Hungary 0.2%).

5. Practical experiences of ombudsmen

In the aforementioned questionnaire I posed a question about the mostfrequent problems encountered in the field under discussion. Eachrespondent could list any number of answers. An analysis of theresponses has shown, apart from certain specific problems exposed byjust one or two ombudsmen, a range of problems that are common toseveral countries. In the forefront there is the – indeed very broad –problem of living conditions in prisons and detention centres, and alsoin psychiatric hospitals. This problem is encountered in Austria,Finland, Iceland, Denmark, Portugal and Slovenia, and in Lithuania andSpain a specific aspect of the problem of living conditions is cited –overcrowding. Disciplinary procedures or disciplinary punishment arementioned as a frequent case by four ombudsmen (Finland, Iceland,Norway and Denmark). The duration of detention is the next mostfrequent problem (Lithuania, Malta and Norway). Initiatives regardingdisciplinary measures are also common to many countries.

In individual responses numerous other problems are cited:

    * the use of force during arrest (Austria),
    * reasons and method of detention by the police –the level of intoxication, informing parents about detention of minor,interrogation without sufficient reason (Sweden),
    * health care (Finland, Sweden, Iceland - accessibility and price of specific services),
    * possibility of work for prisoners (Lithuania: 90% of prisoners do not have this possibility),
    * payment for work (Slovenia),
    * violence on prisoners, humiliating searches for drugs (Sweden),
    * free-time activities (Norway),
    * limitation on possession of various publications or pictures (Sweden),
    * control over correspondence and telephone conversations (Iceland and Sweden),
    * incompatibility of procedural legislation with theECHR and relations with court presidents (Federation ofBosnia-Herzegovina),
    * break of serving prison sentence (Norway),
    * relocation of prisoners (Portugal),
    * excessive isolation of detainees (Malta),
    * use of coercive measures against psychiatric patients (Sweden).

These key problems go to make up a complete picture of the problemsfacing people deprived of their liberty. One interesting comment isthat from the Swedish ombudsman, that the number of complaints relatingto forced medical treatment and in which the ombudsman has beenessentially involved, has fallen since the adoption of new legislationwhich provides that forced medical treatment must be decided by anadministrative court. We may count this as an example of how theactivities of the ombudsman have contributed towards improvingregulations and in this way towards improving the protection ofpeople's rights.

Let us also look at what some ombudsmen noted as an especiallyinteresting case or achievement in their work. I posed such a questionin order to gather information on some cases which might illustrate thediversity and effectiveness of the ombudsmen in the field underdiscussion.

The Lithuanian ombudsman states that on his proposal the governmentadopted a decree on greater humanity in its punishment and prisonspolicy, as well as changes to the internal regulations in correctionalhomes (inmates can wear their own clothes, and they can telephonefreely at their own expense). Furthermore, on his initiative a new lawwas adopted on compensation for the damage done by illegalinterrogation, searches, actions of the courts or state prosecutors.The Hungarian ombudsman counts as the most important achievement thefact that 80% of his numerous recommendations were adopted. The case ofviolation of the rights of conscripted soldiers was also dealt with.Two conscripts were killed while removing grenades from the SecondWorld War. After investigation the ombudsman established that theinvolvement of the conscripts in this operation had no constitutionalbasis (this work should only be carried out by professional soldiersand soldiers under contract), and that in the work in question neitherthe technical nor the personnel requirements were fulfilled.

The Maltese ombudsman succeeded in having women prisoners relocated to better and more appropriate premises.

In Sweden, on the basis of the ombudsman’s criticism of the state ofinstitutions in which minors are detained, jurisdiction over theseinstitutions was transferred from regional to central authorities, anda new state authority was set up.

The ombudsmen of the Federation of Bosnia-Herzegovina encounterparticularly difficult cases. They cite the case of the trial of aformer member of parliament who was accused of war crimes. The courtwas (unsuccessfully) notified about violations of the accused’s humanrights. They are also dealing with the case of those persons who havebeen condemned to death. Although the death penalty was revoked byprotocol 6, and will be formally abolished under the new penal code,nothing has been done as yet regarding the formal status of thesepersons.

The Icelandic ombudsman cites the case of recommendations regardingpayment for dental services for prisoners. He also nullified the legalprovision on inspecting and manuscripts written in prison.

In a hunger strike in Slovenia’s largest prison, the prisoners demandedthe presence of the ombudsman for talks over removing the causes of thestrike. The ombudsman cooperated as a mediator, since it appeared thatone of the fundamental reasons for the strike was inadequatecommunication between the prison authorities and the inmates. He alsosecured an amendment to the law on criminal procedure regardingdetention of minors.

The Portuguese ombudsman cites the case of denial of a request forvisitation between prisoners, based on the fact that one of them wasmarried to somebody else.

The Norwegian ombudsman demanded the termination of the use of (unsuitable) police cells for detainees.

The Finnish ombudsman cites in addition to regular inspections thespecial research programme within which he systematically researchs allthose institutions where police custody and detention is carried out.In a similar way he will also inspect psychiatric hospitals, especiallyin connection with the use of coercive measures.

In addition to the above, certain ombudsmen cite other activities inthis area, including research on their own initiative, systematicinspections of closed premises, proposals for improving legislation andsimilar.

It is therefore evident that European ombudsmen are encounteringsimilar difficulties with regard to petitions relating to persons whosefreedom of movement has been limited. It appears that in this area,too, a democratic tradition is not the decisive element – the durationof detention is problematic both in Norway and in Lithuania.

6. Cooperation between ombudsmen – problems, challenges and tasks

Mutual cooperation between ombudsmen is particularly important inestablishing uniform standards in the legislation of individualcountries and in formulating appropriate solutions in those countrieswhich are updating their regulations on protection of the rights ofindividuals deprived of their liberty. Such procedures are quitenumerous.

We may expect the settling of certain fields by new conventions orrecommendations. The experiences of ombudsmen can represent anextraordinary source of information on problems as well as solutionswhich have been confirmed in practice.

The practical possibility for cooperation between ombudsmen also existsin dealing with petitions in connection with procedures for transfer ofsentences to the home country. These procedures are often extremelylengthy, something caused usually by both the countries in question. Itwill be worth checking the possibility for direct communication andcooperation in such cases. The same goes for dealing with complaintsfrom persons who are in detention or who are serving a prison sentencein another country. In such cases it is possible only to verify whetherthe foreign ministry has through its representatives done everythingpossible to protect its own citizen. Here there is often confirmationof information pointing to irregularities against which it is notpossible to take any action. In such cases it makes sense to inform theombudsman in the country where the individual is detained, so that hemay check the case on his own initiative. Since in a short space oftime there have been several such cases in Slovenia, this issue appearsto be quite salient.

Legal information   |   Privacy   |   Contact Made by: Nova Vizija d.d.