Journal

Of the Institute
Of Justice and
International Studies

Number 1, 2002

Papers From The September 2001

International Corrections Symposium
Institute of Justice and International Studies
Central Missouri State University
http://www.cmsu.edu/cj/journal.htm

ISSN 1538-7917

Journal of the Institute

of Justice and International Studies
Number 1, 2002
ISSN 1538-7909
http://www.cmsu.edu/cj/journal.htm

Papers from the September 2001

International Corrections Symposium
Copyright 2002,
Institute of Justice and International Studies
Department of Criminal Justice
Central Missouri State University
Warrensburg, MO 64093
Printing Services
Central Missouri State University
Warrensburg, Missouri

For information about this journal, write or call:

Director, Institute of Justice and International Studies
Department of Criminal Justice
Humphreys Building Room 300
Central Missouri State University
Warrensburg, MO 64093
660-543-4950
Copyright 2002 by the Institute of Justice and International Studies,
Department of Criminal Justice,
Central Missouri State University.
All rights reserved. No part of this journal may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means without permission in writing from the Institute
of Justice and International Studies,
Department of Criminal Justice,
Central Missouri State University.
Printed by: Printing Services, Central Missouri State University

ii

Contents
Preface .v
Introduction to this Issue..... v
Acknowledgements.......viii
About the Authors.... ix
A Critical Analysis of the Irish Penal System
Paul OMahony 1
A Well-Built Machine, A Nightmare For The Soul:
The Swedish Prison System in Historical Perspective
Roddy Nilsson...11
Prisoners (Human) Rights And Prisoners Litigation In The Netherlands
Gerard de Jonge...23
The Corrections System In Hungary
Andrea Dombrdy35
The Implications of the Human Rights Act for Young Suspects
And Remand Prisoners In England And Wales
Fiona Brookman and Harriet Pierpoint...45
The European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) Fundamentals, Structure,
Objectives, Potentialities, Limits
Rudolf Schmuck69
ICCPR Case Law On Detention, The Prohibition Of Cruel Treatment
And Some Issues Pertaining To the Death Row Phenomenon
Eva Rieter.83
Age And Criminal Responsibility
Frances Reddington...105

iii

PREFACE

his first issue of the Journal of Justice and International Studies marks the
launch of what will hopefully become a successful periodical that will be
found of value by both academics and practitioners. This Journal shall
become the scholarly voice of the newly created Institute of Justice and
International Studies. The Institute came into being, with the encouragement of the
administration at Central Missouri State University subsequent, to the successful
International Corrections Symposium held in September of 2001. The inception of the
Institute with its a focus on issues impacting justice systems throughout the world could
not be more timely. The events of September 2001 demonstrate that our international
society faces profound challenges. As one of the contributors for this issue remarks in
her piece our goal should be that of finding common denominators for humane
treatment that will sustain, instead of destroy, the ethical standards of us as a society.
It is the hope for this journal that we shall be able to examine international
aspects of concerns confronting criminal justice system issues. This issue contains
many of the papers provided at the International Corrections Symposium. Future
issues are likely to engage in any number of topics that are part of this search of the
common denominators with will sustain our ethical standards.
INTRODUCTION TO THIS ISSUE

hy should a university audience largely made up of midwestern American

students and professors be interested in corrections policies in other
countries? Even if the audience were predominated by students majoring
in criminal justice and corrections studies, what would they gather from a three day
program denominated the International Corrections Symposium? Are there any
commonalities among corrections systems in other countries from which an American
audience could draw any lessons? Are the corrections systems so different that, at
best, such a program would be a mere curiosity for these students?
The one U.S. Supreme Court decision that all American audiences know by name is
Miranda v. Arizona (1966), which requires that warnings be given prior to interrogation
of criminal suspects held in custody. The Court in deriving this rule was guided by what
it saw as a fundamental premise: "The quality of a nation's civilization can be largely
measured by the methods it uses in the enforcement of its criminal law" (384 U.S. 436,
480). The treatment of those convicted for violations of a nations criminal law must be a
part of this measure of a nations civilization.
v

How is this treatment to be assessed? Certainly the harshness of the conditions of

the confinement, the quality of a prison systems physical structure, must be considered.
Further, the availability of alternatives in a system of corrections to prisons, the amenities
necessary for making the prison a humane institution, and the programs and funding
necessary to ensure the rehabilitation of the inmate will likely be considered in assessing
this treatment. Additionally relevant are the temporal aspects of incarceration, its
indeterminate features, the length of time, or its non-parolable nature as well as the
disproportionate nature of punishment imposed for the crime.
More abstractly the entire underlying structure of a society might be considered in this
assessment of a civilizations quality, assuming a connection between a countrys system
of corrections and its broader political and social structures.

The U.S. has the highest

imprisonment rate of any country in the world, how does this reliance on incarceration as
a tool of social control impact upon the measure of civilization?
Furthermore, a question should be asked about whether these nations are
operating in isolation. That is are the norms of civilization merely subjective? Do the
nations of the world have as a cohesive cooperative group derived common objective
standards and rules for their prisons? Are there some commonly accepted
international standards under which a country should be operating its system of
corrections?
The International Corrections Symposium was held at Central Missouri State
University in the fall of 2001 in an attempt to address these questions. This program
called together for 3 days 11 international and 8 domestic experts in corrections and
in international organizations to address these questions.
This first issue of the Journal for the International Corrections Symposium
memorializes many of the papers that were heard at this program. All of them strive
to answer several of the questions raised above. Several presenters at the Symposium
made presentations on an individual countrys system of corrections. From these
presentations an American audience with some knowledge of corrections could
readily see parallels and distinctions between corrections in these other countries and
those in the United States.
Paul OMahony a leading observer of prisons in the Republic of Ireland
outlines the dilemmas facing the corrections system in this country. As in the U.S.
the impact of drugs and an increase of prison population have been felt in Ireland.
Roddy Nilsson in his examination the prison system in Sweden outlines some
of the early American exports in prison design that were adopted in this country.
Sweden, like the U.S., has had to confront politicians who have demanded changes to
a system that had previously focused more on the criminal than the crime.
Many facets of the criminal justice system as they relate to corrections are
detailed by Gerard de Jonge. A legal system that embraces the civil law traditions of
continental Europe and shows a tolerance of some drug use are but two of the
vi

distinctions an American reader will discover in this discussion on the corrections

system in the Netherlands.
Andrea Dombrdy in her discussion of the Hungarian system enumerates the
alterations in corrections that have resulted from the profound political changes of a
decade ago. She focuses on the shortcomings of law in practice as it concerns the
conditions of confinement awaiting pretrial detainees.
The reader of the piece by Fiona Brookman and Harriet Pierpoint will see that
the challenge to meet international standards of corrections is not limited to former
east bloc countries eager to join the rest of Europe, but becomes daunting for one of
the worlds leading democracies. The authors explore the dilemma facing the United
Kingdom as it confronts the demand of the Human Rights Act.
Rudolf Schmuck delineates the difficulties of attempting to get countries to
comply with human rights standards applicable to confined persons. Here, even in a
part of the world where there are relatively similar views on these issues, the
European Committee on the Prevention of Torture confronts many obstacles.
Eva Rieter continues this discussion of the notion of universality of human
rights by examining UN Human Rights Committee case law on the International
covenant on Civil and Political Rights. An elaboration of the Human Rights
Committee treatment of the death row phenomenon necessitates an examination of
the developing norms of other multinational organizations.
Finally, in a discussion that perhaps encompasses first principles of any justice
system, Fran Reddington examines the issues regarding internationally accepted
criteria for criminal responsibility and juvenile court jurisdiction.

vii

ACKNOWLEDGEMENTS
any people labored intensively in the planning and organization of
this event. I am happy to acknowledge those individuals and units
at Central Missouri State University that made this event possible
with their generous support. Financial support was generously
provided by the Office of the President of CMSU, the Center For Teaching And
Learning, the Payne Fund For International Understanding, the College of Education
and Human Services, and the Department of Criminal Justice.
Many CMSU faculty members from Sociology, Political Science, as well as
Criminal Justice were of great assistance during the planning and implementation of
the Symposium. Centrals Office of Extended Campus through the efforts of
Deborah Bassore and Joyce Huffman provided tireless support and lots of just plain
hard work for this event. Diana Duvall of the Office of International Programs
managed to always intercede at precisely the right moment to provide invaluable
assistance. Contributing a sense of enthusiastic professionalism to the planning and
opening up the Missouri corrections system for site visits by our international guests,
George Lombardis efforts in making the Symposium a success were singularly
important. In the grand scheme of all the events of the Symposium a most invaluable
person who unselfishly provided his time, resources, and, when it was called for, his
generous sense of confidence, would be Dane Miller.
As an organizer of this program I am deeply grateful to the sacrifices made by
a host of students, the Central Missouri State University community should be
extremely proud of these individuals and their tireless efforts undertaken to make this
Symposium a success. Among the impressions gathered by our Symposium guests
were the enthusiasm, energy, and initiative of our students. At the great risk of
omitting names, these students included: Cindy Adams, Ava Bowman, Kristi Butcher,
Scott Chenault, Bobbi Glaspie, Noel Gwaze-Hwande, Jaime Haase, Eva Jen, Kim
Konigmacher, Mark Kutrip, Josh Newsome, Johann Nystrom, Josh Peery, Tim Rich,
Melissa Schneider, Sarah Shrader, Charles Tomlin, Larissa Tope, Elsa Vasquez, Erin
Whitney, Tim Yasso, and the sine qua non, Heidi Moore.
The incomprehensible events of September 11 must be acknowledged here,
the first day of the Symposium shared this date. Despite the horror and shock of the
attacks, not knowing how the events would transpire on this day, all the participants
desired to see the program continue. This decision by the presenters underscored
their firm belief that at present time the world that we only share needs to have more
gatherings which foster international understanding.

Don Wallace, editor

viii

ABOUT THE AUTHORS

FIONA BROOKMAN has been a full-time lecturer in Criminology and
Criminal Justice at the University of Glamorgan in Wales since1998. She was
awarded her Ph.D. in Criminology at Cardiff University in 2000 and gained the
postgraduate Diploma in Social Science Research Methods the previous year. Her
doctoral studies explored male-perpetrated homicide in England and Wales. Her
research interests have developed to include, homicide, violence and masculinity,
remand prisoners and access to justice, and suspicious and unexplained deaths.
GERARD de JONGE, after studying law in the Netherlands, coordinated the
probation services in the Province of Zeeland. Following an appointment as a
criminological researcher for the Ministry of Justice, he set up a new, government
funded, legal aid service in the Rotterdam region and started a legal aid system for
prisoners. He has been a lecturer at Rotterdam Erasmus University and since 1989 an
associate professor at Maastricht University. In 1998, he was appointed by the Queen
to be a deputy-judge at one of the Courts of Appeal.
ANDREA DOMBRDY received her law degree from the University of Law
at Miskolc, Hungary in 1997, after the completion of her dissertation, Racket in
Hungary. She currently is a lawyer at Dombrdy Lawyers Office in Debrecen where
she works closely with the Hungarian prison system.
RODDY NILSSON is an Assistant Professor in History at Vxj University,
Sweden, where he is also currently holding a research appointment at the Center for
Cultural Research. His current research projects include youth culture and youth
criminality. He has published two books about the Swedish prison system.
PAUL OMAHONY is currently a Senior Lecturer in Psychology, and Head
of the School of Occupational Therapy at Trinity College, Dublin. He was formerly a
forensic psychologist in the Irish Prison System, and a research psychologist with the
Irish Department of Justice. In the latter role, he produced many reports on topics
such as prison suicide, drug use in prisons, and AIDS-related risk behaviors among
prisoners. As a researcher and writer on Irish criminal justice, he has produced four
books.
HARRIET PIERPOINT has held the position of Lecturer in Criminology and
Criminal Justice at the University of Glamorgan since September 2000. Previously,
she was a part-time research assistant and lecturer in criminal justice at the University
of Plymouth. She gained an LL.B. Law with French from the University of
Birmingham in 1997, and a Postgraduate diploma in Social Research from the
University of Plymouth in 1999. Her teaching and research interests include: youth
justice, policing, and research methods.

ix

FRANCES REDDINGTON is a Professor of Criminal Justice at Central

Missouri State University. She received her Ph.D. from Sam Houston State
University and has maintained her interest in juvenile justice, authoring several
articles and books about this topic. Presently she is an officer for the Juvenile Justice
Section of the Academy of Criminal Justice Sciences and further serves on the Board
of Directors for both the Missouri Juvenile Justice Association and the Missouri
Court Appointed Special Advocate Association.
EVA RIETER is a research associate at the Department of International and
European Law of the University of Maastricht, where she focuses on human rights
law and teaches on international and European law. She graduated from the
University of Maastricht in 1995 with a degree in Dutch law. She holds an LL.M.
from the University of Virginia School of Law. Research interests focus on
substantive international and comparative law relating to the death penalty and
torture, and on the contentious procedures before various international supervisory
bodies to human rights treaties.
RUDOLF SCHMUCK has been a member of the European Committee on the
Prevention of Torture on behalf of Germany since 1998. He is a lawyer and civil
servant, working in corrections since 1964. He was director of Prison Staff Training
Academy in Straubing Germany, from 1980 to 1985. He was governor of the Central
Prison in Munich from 1985 to 1990, director of the Department of Corrections 1990
to 1994 for the Ministry of Justice in Saxony.

A CRITICAL ANALYSIS OF THE IRISH PENAL SYSTEM

Paul OMahony1

ow a nation reacts to crime and specifically how it punishes or fails to punish

criminals reflect the core values of a society and are definitive of its essential
character. As Nelson Mandela (1994) has said: no one truly knows a nation
until one has been inside its jails. A nation should be judged not by how it treats its
highest citizens, but its lowest ones. But no comprehensive understanding of the
current state of prisons is possible without an examination of the historical roots of
the penal system. As Nagel (1973) points out in reference to Americas legacy of
nineteenth century prisons: the endurance of these monolithic structures is surpassed
only by the tenacity of the assumptions and attitudes on which they were founded.
In fact, the origins of the modern Irish prison system are to be found in the
establishment of Mountjoy Prison in 1850, one of sixteen prisons built at that time in
Britain and Ireland on the so-called penitentiary model of Pentonville Prison in
London. Partly inspired by the design of Benthams (1789) panopticon, in which a
single unobserved warden in a central circle building could oversee hundreds of
prisoners in their cells in the surrounding prison, Mountjoy was and still is a grim,
forbidding stone building designed to sustain a regime of solitary confinement. In the
silent and solitary penitentiary system, prisoners were fed through a hatch in their
cell doors, worked alone in their cells at cobbling or some similar activity and were
allowed nothing other than religious reading material to break the endless monotony.
They left the cell only for an hours silent outdoor exercise each day or to attend
church. This regime was intended to induce penitence and spiritual renewal in the
punished criminal, not just to deter him from future crime.
The penitentiary system was not only the fruit of almost a hundred years of
protest, critique, and proposal by religiously inspired philanthropists, such as John
Howard, but was itself explicitly founded on religious ideals and methods. According
to Ignatieff (1978), the system reflected the view that salvation was not only Gods
work. It was the States work too. The architectural, legal, and organizational legacy
of the penitentiary system, if not its full-blown religious ideology, is still very
powerful today. The Victorian buildings and many of the rules, concepts and secular
ideals of the penitentiary, though much modified and sometimes ostensibly
repudiated, are still a formidable presence in the current Irish system.
However, the intervening 150 years have witnessed a gradual process of
softening of the original, very severe prison regime. Corporal punishment, such as
birching, and dietary punishment, including bread and water starvation diets, have
been abandoned. The harsh discipline and conditions of forced and, often,
deliberately punitive and unproductive labour, as on the treadmill or crank, have been
abolished or greatly alleviated. There have also been progressively tighter restrictions
on the power of the prison authorities to totally isolate the individual offender. At a
more mundane level, but equally crucially, creature comforts such as mattresses,
1

Copyright 2002 Paul OMahony, published here by permission. Correspondence should be addressed
to author, Trinity College, School of Occupational Therapy, Rochestown Avenue, Dun Laoghaire, Co.
Dublin, Ireland.
1

permission to smoke cigarettes, decent food, radios and more recently televisions and
in-cell sanitary plumbing (for most but by no means all Irish prisoners) have been
introduced. Interestingly, the original planners of Mountjoy Prison were enlightened
enough to provide integral sanitation in each cell, as well as a unique dual chimney
system to facilitate the flow of fresh air through the whole prison. However, because
it very frequently blocked up, the plumbing system was soon removed and has yet to
be replaced by a modern system (Carey 2000).
The gradual process of humanisation of the prisons regime, which has
continued throughout the last 150 years, undoubtedly reflects changing value systems
and rising standards of comfort and material well-being in society outside of prison.
While it is a part of what has been called by Norbert Elias (1938) "the civilizing
process", it has not transformed the prison into a place where offenders suffer no
hardship greater than that which is inherent in the deprivation of liberty (Department
of Justice 1994). Rather, it has led to a somewhat sanitized modern prison system that
in the words of David Garland (1990) provides a way of punishing people - of
subjecting them to hard treatment, inflicting pain, doing them harm - which is largely
compatible with modern sensibilities and conventional restraints upon open physical
violence.
But the Victorian reforms also brought very significant legal innovations,
which provided a structure of laws and specific mechanisms for the surveillance and
control not just of prisoners but of the penal system itself. A comprehensive code of
Prison Rules and a system of inspection were introduced and, eventually, Visiting
Committees were established in order to provide a modicum of democratic oversight
and community involvement. This legal framework afforded meaningful rights to the
punished and placed strict constraints on those authorized to punish on behalf of the
State. For the first time in history there were the makings of a satisfactory answer to
the question 'Who guards the guards?' The new penal code of the mid 1800s, which,
to a very considerable degree, shaped the present Irish prison ethos, was the vehicle
by which society was able to leave behind the arbitrary and brutal oppression of the
'bloody code', which relied on the death penalty, corporal punishment, transportation,
forced labour, and ritual public humiliation, and move forward to the modern legal
framework of human rights, which underpins the protections Irish prisoners now
enjoy.
The generally more humane quality of modern imprisonment in Ireland,
notwithstanding some vestiges of a grimmer era, such as the slopping out of night
waste, and notwithstanding the continuing potential for human rights abuses and the
failure to achieve the declared aim of a regime that merely punishes by depriving
liberty, should be acknowledged and valued not only by the prisoner but by all
citizens who cherish human rights and the preservation of human dignity. However,
from the penal policy-making perspective, one of the most significant changes since
1850 has been the sad slide from the heights of official confidence and optimism
about the role and potential effectiveness of prison to, until very recently, a climate of
widespread skepticism and fatalism about prison. The initial clarity and certainty
about the positive effects of imprisonment, which underpinned the Victorian reform
movement, have long since been supplanted by a sense of defeatism. The decline of
faith in prison was in large measure due to the continual failure of the religiously
inspired penitentiary system and later scientific, alternative rehabilitative
endeavours, based on medical, psychological and educational treatment, to meet the
key goal of reforming the criminal into an honest and useful citizen. It also reflects a
considerable truth in Matticks (1974) statement that if men had deliberately set
themselves the task of designing an institution that would systematically maladjust
men, they would have invented the large, walled, maximum security prison.
2

Be that as it may, Ireland, like most Western modern industrial states, has
abandoned corporal and capital punishment, and has placed imprisonment at the
centre of the system of criminal sanctioning. Imprisonment is now the ultimate form
of punishment, the punishment of last resort. Imprisonment is the severest
punishment available to sentencers and as such it is inevitably the sanction of first
choice for almost all serious crimes. In addition, all of the alternative non-custodial
sanctions available for less serious crime, such as probation, community service, and
fines, depend on the availability of imprisonment as a kind of enforcer, the final
deterrent for incorrigible, persistent, petty offenders, who are unable or refuse to
comply with court orders.
In this context, the discourse on prisons remains vexed and riven by
paradoxes. The current much improved system is the product of a gradual evolution,
but this progress has served only to point up the prisons seemingly ineradicable
potential for human rights abuses and, in many respects, its inherent futility and
injustice (OMahony 2000). The prison discourse is constituted, according to Rotman
(1995), by a never-ending cycle of exposes, reports, proposals, then more exposes,
all characterised by despair about on-going problems, a lofty idealism and a dogged
optimism that prisons could be improved. Much of this critical discourse focuses on
the purposes of punishment and imprisonment and on how society can justify and
legitimate the intrinsically negative and morally questionable infliction of pain. The
apparent relative failure of prisons to reduce crime and recidivism and to reform
offenders (Martinson 1974) and their potential for inflicting damage on inmates and
their families and augmenting rather than diminishing their criminal tendencies have
meant that prisons are often portrayed as a necessary evil. However, given the clear
evidence for at least a comparable level of efficacy for community-based sanctions,
the necessity of prison can be questioned in the case of many types of less serious
crime. One British review of the evidence has concluded that custody is the most
expensive disposal and once the prisoner is released, is no more successful at
preventing future crimes than other (non-custodial) disposals (Home Office 1998).
Critics of the prison, however, range across the whole spectrum, from those
who would reduce the use of imprisonment or abolish it altogether to those who
would greatly extend its use and increase the severity of its punitive effect (Hawkins
1976). A leading abolitionist, Mathiesson (1990), has declared that the prison does
not have a defence, the prison is a fiasco in terms of its own purposes. In fact, there
is a tangled web of interrelated objectives behind any sentence of imprisonment. As
Hart (1968) puts it men punish and always have punished for a vast number of
different reasonsand any morally tolerable account of punishment must exhibit it as
a compromise between distinct and partly conflicting principles.
Imprisonment is aimed, to varying degrees in different cases, at: retribution,
that is the rebalancing of the benefits an offender might have gained from crime by
the application of a quantifiable disbenefit; the reform and rehabilitation of the
offender; a publicly visible form of punishment; deterrence both of the punished
individual and the public at large; the exclusion of offenders from open society; direct
prevention of crime by incapacitation of the offender for the period of imprisonment;
and the expression of community values and social disapproval. It is manifestly
obvious that imprisonment very frequently fails at some of these objectives,
especially rehabilitation, reform and individual deterrence; but, equally, it is
undeniable that it has meaningful success in terms of incapacitation, social exclusion,
imposing retribution, declaring social disapproval and deterring some citizens from
ever getting involved in crime.
Analysis of the current Irish prison system is limited by a dearth of up-to-date
official statistics and a lack of in-depth research. However, it is possible to give
3

outline answers to some of the key questions raised by this brief discussion of the
history and purposes of imprisonment. The following key questions, which all relate
to how Irish society uses imprisonment as the ultimate response to crime, will be
briefly addressed. In what kind of conditions are prisoners held?; What kind of people
are imprisoned?; For what type of crimes?; For what type of sentences?; and What is
achieved by their imprisonment?
First, however, it is useful to briefly describe the prison plant and the trend in
prison numbers. There is a considerable range of different types of prison and prison
regime. There are presently seventeen different institutions, including three medium
sized modern closed facilities (Wheatfield, Castlerea, Midlands Prison), one modern
remand prison (Cloverhill) three small open prisons (Shanganagh for juveniles and
Loughan House and Shelton Abbey for adults), a training prison with special work
and training facilities, which is designated as drug-free and semi-open though it is
behind the walls of the Mountjoy Complex (Training Unit), a prison for young male
offenders (St Patricks), a modern womens prison (Dochas, within the Mountjoy
Complex), a high security prison (Portlaoise), until recently mainly used to hold
subversive or political terrorist prisoners, two long stay prisons (Curragh and Arbour
Hill), which hold mainly sex offenders and murderers, and four older prisons
(Mountjoy, Cork, Fort Mitchel, and Limerick). There is a small unit for female
prisoners in Limerick Prison. Mountjoy Male and Female is the principal committal
prison, receiving new arrivals into the system, but St Patricks is the juvenile
committal prison and Cork serves as a regional committal prison.
In 1961, the daily average number of prisoners in the country, including
unconvicted remand prisoners, was only 447. But in the following four decades the
Irish prison system has witnessed phenomenal growth. Ireland, among the Council of
Europe countries, had the most rapid growth in its prison population in the 17-year
period to 1987 (Tournier and Barre 1990). The number of Irish prison places
increased by 156% in this period compared to an increase of only 19.8% in the U.K,
which suffered even greater increases in crime than Ireland during the 17 years. In
Europe, only the Iberian countries have witnessed a comparable growth in prison
numbers. Irelands increasing use of prison, in fact, most closely mirrors what has
been called the incarceration binge (Hoelter 1998) in the U.S.A., where the total
number of people held in jails in 1997 was 1.78 million, which represented a 262%
increase over the 1980 figures.
On June 1st 2000 there were 2,940 people in custody in Irish Prisons,
including 87 females. This represents a 51% increase since 1987 (with almost all of
the expansion occurring since 1996) and an enormous 658% increase since 1961.
This level of increase far outstrips the increase in the number of recorded indictable
crimes between 1961 and 2000, which is of the order of about 400%.
Despite a particularly rapid expansion of prison places since 1996, involving
the opening of about 1,000 new prison beds in four new prisons, the system is still
afflicted by chronic overcrowding. In June 1999 the system as a whole was 19%
overcrowded, but this problem was concentrated in the older prisons with the worst
material conditions, that is Mountjoy, Limerick, and Cork, which were, respectively,
41%, 69%, and 84% above their design capacity. The current plan is to increase the
capacity of the prison system to 4,000 within the next few years, but these current
trends suggest that even this level of expansion will fail to solve the overcrowding
problem, because, in spite of falling crime figures, more offenders are being sent to
prison, more offenders are receiving long sentences, and more unconvicted and
untried defendants are being refused bail and held in custody. The increased
accommodation is also being used to reduce the number of prisoners who are being
given unprogrammed early release in order to free up prison places. In 1995, 558, or
4

about 21% of all offenders sentenced to imprisonment, were actually serving their
sentences at liberty under the early release scheme. By 1998 this proportion had been
reduced to 15% and by 2001 to 6% or less than 200 offenders (Irish Prison Service
News 2001).
In what kind of conditions are prisoners held?
There are a few areas of the Irish Prison system, like Dochas, the new
Womens Prison, which provide exemplary conditions and services. The generally
small size of prisons and humanitarian ethos of management mean that most Irish
prisoners escape the worst excesses associated with the utterly brutalizing prison
regimes that are familiar from some larger countries, such as the U.S.A. However, the
large, older Irish prisons continue to be overcrowded and drug-ridden and afford a
very low standard of accommodation and facilities. Conditions are unsanitary, lockup times are unconscionably long, and there is a chronic shortage of medical and
psychiatric and general rehabilitative services, purposeful work, educational and
training activity and recreational facilities. This is in spite of the fact that the Irish
prison system is one of the most expensive in the world, presently costing over
50,000 per prisoner per annum. The system also has one of the most favourable
prison officer:prisoner ratios in the world, yet continues to have an enormous prison
officer overtime bill. In 1997, the Prison Service Operating Cost Review Group
concluded that the costs of the system were significantly out of line with those in
other jurisdictions and that prison management was underdeveloped and illequipped to provide a service in the most cost effective manner.
Furthermore, some of the newer prisons have been built to an unacceptably
low standard. The remand prison, Cloverhill, which holds legally innocent people,
has been designed to be overcrowed with small three man cells and a paucity of
facilities. One Irish prison architect (Clancy 1994) has argued that "even in recently
built accommodation the design of the cells and other spaces within the compound
tends to be depressingly grim and it is hardly surprising that drug abuse and suicides
are common."
What kind of people are imprisoned?
It is a fact of fundamental importance about Irish prisons that they are full of
those who, by accident of birth, come from communities that suffer from chronic
unemployment, low income, poor nutrition, deficient education, bad housing, and a
whole series of related personal problems such as family breakdown, alcoholism and
drug addiction (Hannon et al 2000, OMahony 1993, 1997). Many prisoners
themselves have alcohol, heroin addiction or psychiatric problems and a large number
come from disturbed family backgrounds. The vast majority of prisoners have left
school without qualifications or before the legal school leaving age and have a poor
employment record. While this profile of multiple disadvantage is typical of prisoners
around the world, one study (OMahony 1997) has suggested that the prison
population in Ireland come from the most deprived groups and lowest socioeconomic classes to a far more concentrated degree than is the case in Britain. In
many of the larger prisons, medical, social work, rehabilitative and psychiatric
services appear to be overwhelmed by the problems they face.

For what type of crimes?

Morgan (1994) has described three modes of imprisonment, the custodial, the
coercive and the punitive. Custodial imprisonment refers to the holding in custody of
as yet unconvicted people remanded to a court and illegal immigrants. Coercive
imprisonment refers to the detaining of fine-defaulters, debtors and those in contempt
of court or otherwise non-compliant with a court order. Finally punitive imprisonment
refers to the direct use of imprisonment by a court as punishment. The first point of
note, then, is that not all prisoners are imprisoned for crime or as a punishment for an
offence that the court considered deserving of imprisonment.
On the 1st of June 2000, 322 of the 2,940 total of prisoners in custody, or
11%, were unconvicted and on remand and detained in Morgans custodial sense.
Remands are a growing proportion of the prison population as a consequence of the
change in the bail laws and the opening of Cloverhill as a designated remand prison.
In January 1994 (the last date for which there are full statistics available) there were
only 62 remand prisoners in the system, which was less than 3% of the then prison
population. However, remands represent a much larger proportion of the committals
to prison than of the detained population because they tend to spend a short period in
prison. In 1994, there were a total of 4,664 committals under remand, amounting to
40% of the number of committals which stood at 11,530. Again out of this total of
11,530 committals 2,173 (19%) were fine defaulters and 270 (2.3%) were debtors, in
contempt of court or in default of sureties. Although the exact breakdown is not
available, it is certain that these coercive uses of imprisonment, while very substantial
in terms of committals, constitute a much smaller proportion of the detained
population because of their normally very short stays in prison. It is reasonable to
speculate on the basis of these figures that about 20% of the detained prison
population in 2001 are either custodial or coercive prisoners. However, the
indications are that only a minority (around 40%) of the people annually committed
to prison are punitive prisoners, that is offenders sent directly to prison as
punishment.
Table I: Breakdown of Offence Types
Committals 1994 Detained January 1994
No.

No.

Offences against the person

705

10

505

26

Offences against property

with violence

668

520

27

Offences against property

without violence

1957

29

562

29

3536

52

363

18

Miscellaneous non-violent
including:
Road Traffic Offences

1765

26

Drunkenness

205

Debtors, Contempt etc.

270

Other non-violent

1296
____
6866

19

Total

____
1940
6

The majority of convicted Irish offenders are sent to prison for relatively minor acts
of property theft. Table I provides a breakdown of the offence type for the 6,866 nonremand committals to prison in 1994 and includes those in prison for failure to pay a
fine.
In 1994, therefore, when the crime total was 101,036, about 68 people were
punitively or coercively committed to prison for every 1,000 indictable crimes
recorded. This compares with a rate of about 14 per 1,000 in England and Wales
(Home Office 1995), which is almost five times less. The imprisonment under
conviction rates per head of population for the two jurisdictions (137 and 179 per
100,000 for England and Wales and Ireland respectively in 1994) are far less
dramatically different because England and Wales has about three times more crime.
The detention rate, that is the number of people held in prison per 100,000 of
population, is actually lower in Ireland (in 1994, 60 versus 120 per 100,000).
However, this mainly reflects the wide use of unprogrammed early release, the high
proportion of short sentences, and the very large number of fine-defaulters sent to
prison for extremely short periods in Ireland. The current expansion of prison places,
which is putting an end to unprogrammed early release means that detention rates in
Ireland will more truly reflect imprisonment rates and will quickly converge with and
possibly surpass the detention rate in England and Wales.
Nonetheless, imprisonment rates clearly point to a comparative Irish overuse
of prison, particularly in regard to the breadth of use as opposed to the harshness of
individual sentences. The proportion of indictable crime that is violent and serious is
not lower in England and Wales than in Ireland and, as Table I indicates, the majority
of those sent to prison in Ireland have not committed serious crime. Yet, the figures
show that in Ireland one person goes to prison for about every 14 reported indictable
crimes, whereas in England and Wales one person goes to prison for about every 70
reported indictable crimes. This enormous discrepancy has undoubtedly increased
since 1994 because Irish levels of committal to prison under sentence have increased
whilst the level of reported indictable crime has substantially decreased by about
20%.
Irish sentencing patterns have clearly become anomalous in the broader
Western European context. Neighbouring countries like England and Wales have
experienced growth in crime rates almost exactly parallel to those in Ireland, but from
a much higher base. However they have adjusted their sentencing practice by
restricting the use of imprisonment and turning to fines and community based
sanctions to a far greater extent than Irish courts.
Only 19% of people punished by imprisonment in Ireland in 1994 had
committed a violent offence, whether against the person or property. Eighty-one
percent were imprisoned for non-violent offences, including substantial numbers for
debt and drunkenness and an extraordinary 26%, or more than a quarter of the total,
for traffic offences, not including dangerous or drunken driving. It cannot even be
assumed that all the 19% sentenced for violent crime have committed serious
offences, since 272, out of 1373 such committals (20%), received a very short
sentence of under 3 months. The detained population figures reflect the accumulation
over time of long sentence prisoners, but, even so, as Table I illustrates, almost half
(47%) of the detained, sentenced population in 1994 were being punished for nonviolent offences.

Sentence Lengths
3000

'Committals 1994'
'Detained Jan 1994'

2000

1000

Less than 3mts 3mts - Iyr

>1yr - 5yrs >5yrs- 9yrs 10yrs plus

Figure 1

For what type of sentences?

Figure 1 illustrates the distribution of sentence lengths received by all
committals under sentence for the year 1994 and by the detained, sentenced
population on January 1st 1994. This indicates two very disparate profiles. The prison
at this time held predominantly longer stay prisoners (81% with sentences over 1 year
and 29% with sentences over 5 years), but this is clearly a poor guide to the use of
imprisonment by the courts, since the much larger number of committals to prison by
the courts were overwhelmingly on short or very short sentences. In recent years, the
numbers of prisoners serving a life sentence for murder or a long sentence for sex
offences have grown notably, to stand in June 2000 (Irish Prison Service News 2001)
at 104 and 354, respectively. Indeed, the proportion of the detained population
imprisoned for offences against the person increased from 26% in 1994 to 35% in
2000.
Life sentence and long sentence prisoners, such as most sex offenders,
obviously accumulate within the system. However, the fact remains that, in general,
sentences to imprisonment are overwhelmingly short, that is 1 year or less (75%), and
the largest category by far is sentences under 3 months (42%). This latter category, of
course, includes sentences of imprisonment imposed coercively. There is obviously a
huge and rapid turnover of offenders with very short stays in prison of a few days or
weeks. Remission of 25% of sentence (33% for females) and unprogrammed early
release also have a marked effect on reducing lengths of time actually spent in prison.
What is achieved by their imprisonment?
Finally, there is little evidence that imprisonment in Ireland reduces crime,
deters prisoners from future crime or reforms and rehabilitates many of them. The
massive increase in the use of imprisonment over recent decades has for the most part
coincided with a continuing increase in recorded serious crime. Most especially, the
use of imprisonment has had a negative impact in the crucial area of drug-related
8

crime. The prison, so far from reducing the incidence of drug use amongst offenders,
has almost certainly contributed to its increase and to the growth of drug-related
crime, which has come to dominate the Irish crime scene (Keogh 1997).
There is no available evidence on what proportion of first committals to prison
never return to prison, but, according to 1994 figures, 60% of sentenced adults and
43% of sentenced juveniles had served a previous sentence. Hannon et al (2000)
found that while less than 5% of a large random survey of male prisoners had spent 5
years in prison under their current sentence, 26% of them had spent more than 5 of
the last 10 years in prison under various sentences. A random sample survey of 108
Mountjoy prisoners (OMahony 1997) indicated that 77% had spent time in St.
Patricks, the juvenile detention centre, and 93% had served a previous sentence. In
fact, more than half of the sample had more than 10 previous convictions and the
sample as a whole had an average of 14 convictions and 10 separate episodes of
imprisonment. Evidently, while an unknown but probably quite small number of
people are sent to prison once and never return, the people against whom
imprisonment is typically used are highly recidivist. They are not appreciably
deterred or reformed but are far more likely to be confirmed and hardened in their
criminality by prison.
Conclusion
There is a growing awareness that it is unrealistic to look to prisons to
transform, or even to scare, offenders into being conformist, aimiable, socialized
citizens. Prisons cannot entirely undo the powerful formative influence of the family
and neighbourhood and of the social, economic, and subcultural factors which
profoundly shape criminal motives and careers. Furthermore, the figures just
examined indicate that the Irish use of imprisonment is seriously skewed with the
majority of sentences imposed being very short and for relatively petty crimes. The
Irish courts clearly do not use imprisonment as the last resort. In 1994 27% of prison
committals were under 21 years old and there is evidence (OMahony 1997) that over
a fifth of prisoners first convictions, involving mostly non-violent crime, were
punished by a term of imprisonment or detention. Short sentences can only be useful
coercively or as a deterrent, but the overwhelming evidence is that this use of
imprisonment actually serves to undermine the deterrent effect of imprisonment. The
vast majority of people passing through the prisons are there for too short a time to be
able to benefit from training, therapeutic, educational and rehabilitative programmes.
Indeed the constant demands on the system posed by short-term prisoners are very
likely to deflect energies and resources away from the provision of effective services
to long stay prisoners.
However, prison can provide some opportunities for positive personal
development. It is possible to devise programmes, such as the CONNECT project
(Integra Support Structure 1999), to which the Government have committed 46
million over the next six years, which represent a realistic opportunity for improving
the employability of and social attitudes of offenders. This programme operates an
individualised system of planned personal development, which aims at the
habilitation of undereducated and inadequately socialised offenders. The programme
stresses participative, partnership approaches and the empowerment of the individual
offender and so represents a real chance to overcome past attitudinal barriers to the
success of offender rehabilitation. The focus is on interpersonal and basic cognitive
skills as much as on narrowly defined vocational training, and the programme, very
crucially, involves an element of job placement and throughcare on release from
prison.
9

It is evident that prison cannot fulfill all of the positive expectations held for it
and, equally, that many of the destructive side-effects of imprisonment for the
personality and prospects of the prisoner, for his family, and for the fabric of society
are avoided only with extreme difficulty. It is also evident that the overcrowding and
poor material conditions in many Irish prisons and the manner in which the Irish
courts make use of imprisonment work to the detriment of plans to improve the ethos
and effectiveness of prison. While drug treatment, sex offender therapy, anger
management groups, the CONNECT project, and other similar positive developments
are starting to overturn previous defeatist attitudes about rehabilitation in prison, it
still remains true that, as the Webbs (1922) have stated, the most hopeful of prison
reforms is to keep people out of prison altogether.
References
Annual Reports on Prisons Department of Justice Dublin: Stationery Office.
Bentham J. 1789. An Introduction to the Principles of Morals and Legislation London.
Carey T 2000. Mountjoy: The Story of a Prison Corks: Collins Press.
Clancy F. 1994. Prison Design and Construction in the October edition of Build.
Department of Justice 1994. The Management of Offenders: a Five Year Plan Dublin: Stationery
Office.
Elias N 1938. The Civilising Process: The History of Manners Oxford: Basil Blackwell.
Garland D. 1990. Punishment and Modern Society Oxford: Clarendon Press.
Hannon F. Kelleher C. and Friel S. 2000. General Healthcare Study of the Irish Prisoner Population
Dublin: Stationery Office.
Hart H. L.A. 1968. Punishment and Responsibility Oxford: Oxford University Press.
Hawkins G. 1976. The Prison: Policy and Practice Chicago: University of Chicago Press.
Hoelter H. 1998. Lessons Learned from America: Stopping the Incarceration Binge Lecture to the
Law School Trinity College Dublin February 1998.
Home Office 1995. Digest 3 Information on the Criminal Justice System in England and Wales
London: HMSO.
Home Office 1998. Reducing Offending: An Assessment of Research Evidence on Ways of Dealing
with Offending Behaviour London: HMSO
Ignatieff M. 1978. A Just Measure of Pain p 56 London: Penguin Books.
Integra Support Structure 1999. Proceedings of the 1998 Integra Conference, Dublin
Including
Prisoners and Ex-offenders in Employment and Society Dublin: Integra Support Structure and
WRC Social and Economic Consultants.
Irish Prison Service News 2001. April Volume 1 Part 5 Dublin: Irish Prison Service.
Keogh E. 1997. Illicit Drug Use and Related Criminal Activity in the Dublin Metropolitan Area
Dublin: Garda Headquarters.
Mandela N. 1994. The Long Walk to Freedom London; Little Brown.
Martinson R. 1974. 'What works?: Questions and Answers about Prison Reform in The Public Interest
10, 22-54.
Mathiesen T 1990. Prisons on Trial London : Sage.
Mattick H. 1974 . The Prosaic Sources of Prison Violence Occasional Papers Chicago: University of
Chicago Law School.
Morgan R. 1994. Imprisonment in Oxford Handbook of Criminology (Eds Maguire M., Morgan R.
And Reiner R.) Oxford: Clarendon Press.
Nagel W. 1973. The New Red Barn: A Critical Look at the Modern American Prison New York:
Walker.
OMahony P. 2000. Prison Policy in Ireland; Social Justice versus Criminal Justice Cork: Cork
University Press.
O'Mahony P. 1993. Crime and Punishment in Ireland Dublin: Round Hall.
O'Mahony P. 1997. Mountjoy Prisoners: A Sociological and Criminological Profile Dublin:
Stationery Office.
Prison Service Operating Cost Review Group 1997. Report Dublin: Stationery Office.
Rotman E. 1995. The Failure of Reform: United States 1865-1965 in the Oxford History of the
Prison (Eds Morris N. And Rothman D) Oxford: Oxford University Press.
Tournier P. and Barre M. 1990. 'A Statistical Comparison of European Prison Systems' in Prison
Information Bulletin No. 15 Strasbourg: Council of Europe.
Webb S and B 1922. English Local Government: Prisons London: Longman.
10

A WELL-BUILT MACHINE, A NIGHTMARE FOR THE SOUL:

THE SWEDISH PRISON SYSTEM IN HISTORICAL
PERSPECTIVE
Roddy Nilsson1

s is well known, the emergence of prisons was an international

phenomenon.2 The penal philosophy behind different prisons were very
similar much more than today as they to a high degree were built on the
same sources and authorities. But, of course, this doesnt mean that the development
took the same route in every nation. Different socioeconomic, religious, political and
cultural contexts formed the background against which these changes took place.
In this essay I will, starting in the middle of the 19th century, give an
historical overview of the Swedish prison system as well as try to explain some of the
most important features that have characterized its development up to today. I will
also, on the way, give some more general remarks about the prison as a phenomenon.
In most early writings about prisons in Sweden there has been a strong
emphasis on the improvement in the criminal law that they represented. Prisons were
primarily looked upon as a reform, a big step forward on the road towards humane
and rehabilitating punishments. For sure, some backlashes happened, but they were
only temporary as an effect of shortage of economic resources, inflexible laws and
statutes, unsympathetic and ignorant politicians, or external crises that no one could
foresee.3
The development in the last decades in the area of prison research has shown
that this is an untenable position.4 We must be very clear that prisons are very severe
disciplinarian institutions where people get punished. We must also have in mind that
many people in prisons have committed awful crimes, and that some of them are very
dangerous. After all, being accused of cuddling the criminals is not a good start if we
want to work for effective, fair, and humane prisons. Without being disrespectful to
earlier generations of prison administrators and researchers we must point to the flaws
and blind spots in the reform perspective. That means also that we very thoroughly
must reflect upon where we ourselves are standing in this question.

Copyright 2002 Roddy Nilsson, published here by permission. Correspondence should be addressed
to author, History Department, School of Humanities, Vaxjo University, S-351 95 Vaxjo, Sweden
2
The literature dealing with the history of prisons is considerable. See, for example, the articles and
references in Norval Morris and David J Rothman eds, The Oxford History of the Prison. The Practice
of Punishment in Western Society (Oxford: Oxford University Press, 1998).
3
See, Sigfrid Wieselgren, Sveriges fngelser och fngvrd frn ldre tider till vra dagar. Ett bidrag
till svensk kulturhistoria (Stockholm: P A Norstedt & Sner 1895); Torsten Eriksson, Krininalvrd,
Ider och experiment (Stockholm: P A Norstedt & Sner 1967), eng. ed.The Reformers: an historical
survey of pioneer experiments in the treatment of criminals (New York: Elsevier 1976); Staffan
Rudstedt, I fngelset. Den svenska fngvrdens historia (Stockholm: Tiden 1994).
4
The criticism against the modern prison as an institution of repression is, of course, mostly associated
with the writings of the French philosopher and historian Michel Foucault, especially Surveiller et
Punir: Naissance de la prison (Paris: Gallimard 1975), eng. ed. Discipline & Punish. The Birth of the
Prison (London: Penguin Books 1977). It must, however, be emphazised that Foucault was part of a
much broader movement.
11

I.
As everybody familiar with the subject knows there is considerable confusion
regarding the terms and concepts that are used in this area. I will use the word
prison as the generic term and penitentiary as the term describing the institutions
that were developed in the 19th century .
As mentioned above the emergence of prisons should be looked upon as an
international phenomenon and as an early example of the workings of an international
network. Prison reformers, whose interests and goals were largely shared, came into
contact with each other. Prison administrators, lawyers, philanthropists, religious
reformers, writers, and so on, gathered around what was seen as the historical task
or even mission of introducing the new penal system.5 The international influence
was very evident in Sweden. A number of well-known figures such as John Howard,
Jeremy Bentham, Thomas Fowell Buxton, the German jurists Julius and Mittermaier,
and the French political theorist Alexis de Tocqueville among others were regularly
cited in the debates and propositions about prisons.6 Penitentiaries also had many
distinguished supporters in Sweden. Most prominent was the Swedish Crown Prince
Oscar, later king Oscar I, who wrote a tract were he promoted the new penitentiaries.
This tract was translated into several languages.7
In most of the countries where new prison systems came in to being in the 19th
century there were heated debates over how to design and run the prisons. One of the
questions to a large part focused on what has been called the battle between the
systems, that is the Philadelphia- vs the Auburn system, or as they sometimes were
called, the solitary and the silent system. In Sweden the answer to the question was a
total victory for the Philadelphia system.
The first penitentiaries in Sweden were built in the 1840s as a start of a
building program that all in all resulted in about 45 nearly identical new penitentiaries
of the Philadelphia model. To this should be added 5 convict prisons for long-time
prisoners.8 The main reason for the outcome to be so thoroughgoing was without
doubt the centralized character of the Swedish State. This meant that the State took
the financial and organizational responsibility for the programme. The building costs
were enormous for a rather poor, mainly agrarian country on the outskirts of Europe.
The costs have been estimated to total, in todays monetary value, well over 20 billion
Swedish crowns (about 2 billion dollars).9 This building program has been described
as the most exhaustive prison reform in the world.
This program was decided at the time when the number of prisoners had
quadrupled. All kinds of prisoners where packed into old castles, jails, and work
houses and reached a peak of nearly 200 prisoners per 100 000 inhabitants in the
1840s, the highest rate ever in Sweden. It should, however, be noted that about half of
the prisoners in the middle of the 19th century where ex-convicts, vagrants,
unemployed, drunkards, etc., who according to the Draconic system of legal
protection were placed in preventive detention.10
5

See Robert Lewis Norris, Prison Reformers and the Penitential Publicists in France, England, and
the United States, 1774-1847 (Ph.D. diss. American University, Washington D C 1985).
6
Roddy Nilsson, En vlbyggd maskin, en mardrm fr sjlen. Det svenska fngelsesystemet under
1800-talet (Lund: Lund University Press 1999).
7
Oscar, Om straff och straffanstalter (Stockholm 1840).
8
Nilsson, pp 241-43.
9
See Hanns von Hofer, Fngelset. Uppkomst avskrckning inkapacitering. Tre kriminologiska
studier (Stockholm: Kriminologiska institutionen, Stockholms universitet 1993, p 48.
10
von Hofer, p 41; Annika Snare, Work, War, Prison and Welfare. Control of the Laboring Poor in
Sweden (Copenhagen: Kriminalistisk Institut 1992).
12

The National Board of Prisons had been founded in 1825 and during the
following decades its size and influence rose steadily as more and more issues and
areas came under its authority. Although the regional civil service retained some of
the administrative responsibility for the regional prisons, the system in practice soon
took on a strongly centralized form. This development reached a peak at the turn of
the 20th century. The National Board was then headed by the dynamic Sigfrid
Wieselgren, who in influence as well as in self-assurance could be compared to his
contemporary colleague in England, Edmond Du Cane.11
II.
The new criminal code of 1864 confirmed the dominant status of the prison.
Corporal punishments had disappeared in 1855 and the use of the death penalty
declined sharply in the second half of the 19th century and was finally abolished in
1921. It must however be noted that it is an oversimplification just to see the prison as
a substitute for corporal and capital punishment.
On a general level it is clear that the penitentiaries were born out of the
meeting between the intellectual climate of progressive spirit and the enormous social
upheavals in the 19th century. Innumerable supporters praised the superiority of these
institutions and confessed their belief in the blessings of the penitentiary and the
solitary confinement system. In 1861 The National Board of Prisons wrote that the
building of the penitentiaries should be seen as the start of a golden era and praised
the Parliaments decision to vote for building penitentiaries. It was said that the
Estates seldom, if ever, have allotted money to anything that has been of such
importance for the whole of society as this program.12
At practical level most of the support came from the prison chaplains. With a
mixture of naivet, belief in the goodness of man, and aspirations of power they stood
out as the most die-hard advocates of the penitentiary system, especially the practice
of solitary confinement.13 That same attitude was also shown in the words of the
famous Finnish-Swedish writer Fredrika Bremer who on a journey to the United
States in the 1850s visited the famous penitentiary in Philadelphia. She reported that
she left the building much more edified than she often had when she left church.14
The religious and idealistic rhetoric often, as in the case of Fredrika Bremer,
hid the more painful elements of the prisons. Bremers almost total blindness or
neglect for the disciplinarian character of the penitentiaries stands in sharp contrast
to the observations of her contemporary writer-colleague, the well-known Danish
childrens book writer H C Andersen. With remarkable sensibility and clearsightedness Andersen described the penitentiary as a well-built machine, a
nightmare for the soul.15
In almost all countries that developed a prison system in the 19th century a
para-military organization was adopted.16 But this model never became dominant in
Sweden unlike in other countries, mostly because the majority of the prisons were
relatively small.
11

About the Du Cane-regime see for example W J Forsythe, Penal Discipline, Reformatory Projects
and The English Prison Commission, 1895-1939 (Exeter: University of Exeter Press 1991), pp 19-30.
12
Nilsson, p 324. My translation.
13
Ibid, pp 314-54.
14
Ibid, p 234. My translation.
15
Ibid, p 232, My translation.
16
See, for example J E Thomas, The English Prison Officer since 1850. A Study in Conflict (London:
Routledge & Kegan Paul 1972); Patricia OBrien, The Promise of Punishment. Prisons in NineteenthCentury France (Princeton: Princeton University Press 1982).
13

At the beginning of the 20th century the prison governors stopped being
recruited from the army. Instead teachers, jurists, or people educated in civil service
were employed. Thus a new professional group of prison administrators was
gradually formed, a group that saw itself as specialists in the treatment of prisoners.
The same could be said of the lower personnel. From having been a rather
undisciplined group in the middle of the 19th century, characterized by short
employment periods, many dismissals, drunkenness, etc., prison guards at the
beginning of the new century appeared as an increasingly well-ordered and loyal
corps where clear features of a specific prison guard culture could be discerned. In
exchange for loyalty the State offered employment security, gratuities and old age
pensions. Thus very long employment periods of 25-30 years became common.17
In 1906 the prison guards formed a national union in spite of some resistance
from governors and State officials who either smelled socialism in all such moves or
held the opinion that State employees should not be allowed to form such an
organization.18 However, it must be said that through its whole existence the Swedish
prison guards had formed a loyal and non-militant working force never involved in
any strikes or other industrial actions.
III.
As with the other Nordic countries a significant feature of the Swedish prison
system was its heavy dependence on solitary confinement. In a series of legislative
measures, that reflected the authorities high esteem of coercive measures, solitary
confinement was increased up to a point where all sentences up to three years were
spent in isolation. In practice this meant that in the beginning of the 20th century90%
of the Swedish prisoners spent their entire sentence in isolation. It is striking that even
after it became very clear that solitary confinement was a failure in rehabilitating the
offenders, the expansion continued. The main reason for this must be seen in the
disciplinary techniques that it represented.19 Although the practice of solitary
confinement was mitigated from the time of the First World War it remained in use
until 1945.
From the point of view of the prison authorities the advantages with solitary
confinement become clear if we remind ourselves that the prison always is a place
where a power-game is carried out. As every prison governor, prison officer, and
criminologist know or at least should know a prison is to a large degree about
holding control and power. The above-mentioned general governor Wieselgren
expressed the difference between an ordinary prison and a penitentiary based on
solitary confinement very succinctly: In a prison where the prisoners can associate
freely they know they are a power, in a penitentiary they have lost it.20
The penitentiaries represented the ultimate privatization of punishment. The
prisoner lived for 23 hours a day in a cell; the only people he met were prison
personnel, and perhaps some representative of a visiting association. He became an
anonymous number with practically no contact with the surrounding community.
The penitentiaries became almost totally closed micro-societies where it was it
should be emphasized as hard to get in as to get out. Those who had access to the
prisons were carefully selected, the information that came out from there was either
censored or screened and compiled by the prison administration, the staff was
forbidden to talk about the work etc.
17

Nilsson, pp 372-422.
Sveriges Fngvrdsmanna-Frbund 1906-1931 (Stockholm 1931).
19
Nilsson, pp 282-88, 355-71
20
Nilsson, p 287. My translation.
14
18

But this it is not the whole picture. There is also, so to say, another prison.
There are gaps and loopholes in all systems, and this is where the prisoners created a
living-space for themselves. From the prisoners point of view life in prison is to be
able to survive socially during long, often recurrent periods of isolation; to learn how
to exploit the rules and regulations of these institutions to ones own advantage; to
learn how to play along with the chaplains and other prison personnels talk of
repentence and improvement; to learn to cope with extremely routine-like and strictly
regulated circumstances by using the few chances of physical motion and mental
stimulation that were available; to learn all the prison-talk and the signs, signals and
raps that only prison experience can give, etc.21
IV.
The first decades of the 20th century saw only minor changes in the system,
although a form of progressive stage-system was introduced. In 1906 conditional
sentences and conditional release (parole) came into Swedish law, something that
successively decreased the prison population. But at the beginning the new laws were
very carefully and strictly used (the first year only 12 prisoners where given
parole!).22
Around 1930 new winds began to blow. The British criminologist David
Garland has used the concept penal-welfare strategies for the merging of penal,
social and medical measures that developed in the first decades of the 20th century.23
This trend could have also been seen in Sweden. Several new correctional practices
and measurements or reforms as the politicians and administrators behind them
loved to say such as indeterminate sentences, preventive detention for the
recidivists and special juvenile prisons (partly inspired by the British Borstal-system)
were incorporated into the penal system. Especially noteworthy is the introduction of
short furloughs, or leaves. This development could be seen as a process both of
differentiation and individualization. At the same time what was seen as the last
remnants of the old repressive system (extra-judicial punishment in a darkened cell
and whipping) were abolished.
The 1930s were also the beginning of the Swedish Welfare State as The
Social Democrats came into power in 1932. In 1934 the Social Democratic Minister
of Justice, Karl Schlyter, held a much-noticed speech with the message Depopulate
the Prisons! The time had come, Schlyter argued, for a radical change in the
Criminal Law. The prisons should be emptied of misdemeanors, juvenile criminals
and vagrants and be reserved for the real criminals, those convicted of felonies.24
Schlyter resigned after four years, and although he was a member of the
Parliament and led the Committee of Justice for many years, his influence is much
debated. He was an iconoclastic outsider in the Social Democratic party, a man who
never reached the inner circles where the more pragmatic and down-to-earth men
dominated. His upper middle-class background also created a distance between him
and the majority of the party officials.25 But when it came to the composition of the
prison population Schlyter was farsighted. From the inter-war years the prison
population started to resemble the one of today as juveniles, short-timers, psychiatric
21

About prison subcultures see for example OBrien, pp 75-108.

For a general picture of the development within the Swedish Prison system in the 20th century see
Eriksson 1966, pp 248-334. The information about the number of prisoners given parole is from p 297.
23
David Garland, Punishment & Welfare. A History of Penal Strategies (Aldershot: Gower 1985).
24
Karl Schlyter, Avfolka fngelserna! Tal Auditorium den 5 december 1934 (Stockholm: Bilaga ur
statsrdsprotokollet 1935).
25
Jan-Olof Sundell, Karl Schlyter en biografi (Stockholm: Norstedts Juridik 1998).
15
22

patients and first time convicts were dealt with in other ways. The groups that
populated the prison were to a increasing degree long-timers and habitual and
recidivist criminals.
A major change was the new Implementation of the Sentence Act of 1945 in
which, as mentioned, solitary confinement was abolished. The Act led to a great
expansion in farming colonies and other forms of open prisons. It was officially
declared that the loss of liberty was to constitute the punishment. It was explicitly
stated that no further deprivations or sufferings, other than those directly linked to the
incarceration, were to be inflicted on inmates. In 1942 the first national probation
officers also began their work, an important step in the development of noninstitutional care and in 1946 automatic parole was introduced.
Although this law has been seen as a forerunner on the way to a liberal and
humanitarian correctional treatment it must be noted that much of the intentions and
the high expectations that were placed in the reforms, at least in the short run, turned
out to be a failure. The 1940s and 50s were extremely difficult times for the prisons.
There are many reasons for this but the most obvious one is that, in spite of the work
of several committees and government commissions, it could be argued that the
prison and the prisoners in practice were low priorities.26 The leading circles of the
Social Democrats as well as the party electorate for a long period showed only
marginal interest in criminal issues. The result was half-hearted support and poor
funding. As an example it could be mentioned that in the period between 1900 and
1960, apart from open prisons and farming colonies, only 6 new prisons were built, of
which 4 where juvenile reformatories.27 The result was shabby and overcrowded
prisons and poor security as the staff was undermanned and underpaid and the
working moral low. The decades after the Second World War were the high tide of
the welfare state, perhaps more so in Sweden than anywhere else. But it remains an
open question if the prisons and prisoners really became part of the welfare system.
V.
In the middle of the 1960s the situation began to change for the better. The
new criminal law of 1965 that finally came into being incorporated the idea of
treatment into the whole criminal justice system. Among other things prison and hard
labor were amalgamated to one uniformed sentence and probation became a separate
sentence. A group of larger maxi-security prisons were built that improved the
security and reinstalled a more controlled situation.
The high tide of optimism regarding the possibilities of reforming the
prisoners and constructing a humanitarian prison system is found in the 1960s and
70s. The director-general of the National Prison Board, Torsten Eriksson, said in a
speech in 1963:
A wiser future will surely reorganize the various ways of treatment within the penal
system, will make it more like the health care of today. The treatment will not be as
focused on time as it is now, and the time spent in prison will depend on the factual
need, rather than on the repressive rules recently being followed.28
Eriksson could be seen as one of the politically committed civil service men
with close ties to the Social Democrats who saw their own work in a progressive and
reformative light. At the same time he believed that a good deal of the prisoners could
26

Torsten Eriksson, Politik och kriminalpolitik (Stockholm: Norstedt & Sner 1977).
Anders man, Om den offentliga vrden. Byggnader och verksamheter vid svenska
vrdsinstitutioner under 1800- och 1900-talen (Stockholm: Liber 1976), p 378, 405.
28
Roddy Nilsson, Den svenska fngvrden fngad i sin egen historia?, Tidskrift fr kriminalvrd
4/1997, p 21. My translation.
16
27

be reformed through the application of the traditional working-class values of hard

work, thrift, strictness and conscientiousness. First we build a factory, then we build
a wall around it, as he on one occasion commented on the building-program for new
prisons.29 The prisoners should perform real productive and rationally organized
factory work. It was the heyday of the industrial society and all hands were needed to
keep the production going.
But in the late 1960s the prison system came under pressure as claims were
put forward for better treatment and more thoroughgoing reforms. The pressure came
both from the outside from solidarity- and prisoners rights groups and a wide range
of left wing intellectuals and from the inside from strikes, campaigns and riots
among the prisoners. In 1966 an organization for more humane treatment of the
prisoners was founded (KRUM) and in 1970 even a national union for the prisoners.30
One of the outcomes was a much more liberal law for the treatment of
offenders that was introduced in 1974. It was emphasized that probation and other
community measures were the natural way of dealing with those sentenced for
crimes. The 1970s was the peak of the prison reform movement and the future looked
bright for those who supported a radical and reform-oriented criminal policy, or as an
optimistic prison governor proclaimed in 1976: I think we are on the right way!.31
In 1980 the separate juvenile prisons were abolished, with the clear goal that almost
all juvenile criminals should be treated by the Social Service.
Together with the other Scandinavian countries and the Netherlands, Sweden
has had a reputation of being the most lenient and liberal prison regime in Europe. No
doubt, the relatively small size of the prison population in these countries made it
easier to develop and maintain more tolerable and durable conditions. But also, other
reasons must be taken into account. In Sweden such factors as the nations non-violent
20th century history, its co-operative tradition, the steady economic growth, the
homogenous population, and, of course, the general social ambitions of the welfare
state, have been pointed out. Another suggestion has also been put forward and that is
the low degree of politicization of the criminal field in fact had made it possible for
a relatively small group of committed reformers to influence the development in a
more humanitarian way.32
It could thus be argued that the relatively lenient prison regime was the result
of a combination of the structural circumstances mentioned above and of the
optimistic climate of the post-war years. At a general level it is also clear that the
movement for a prison reform must be seen in the context of the radical 1960s.
VI.
An ideological shift towards harsher criminal politics began to emerge in the
1980s and in the 90s. Something also affected what happened in the prisons. Lawand-order became a conservative profile-issue in the 1991 general elections, which
was won by a center-right coalition. Even more interesting is that when the Social
Democrats came back to power in 1994 they in many ways continued on the same
track. The major difference was that the rhetoric became less populist. It is also clear
29

Eriksson 1977, p 199. My translation.

Roddy Nilsson, Vxjfngelsets historia 1848-1995. Institutionen, mnniskorna och brotten under
hundrafemtio r (Norrkping: Kriminalvrdsstyrelsen 1996), p 144-45. For a study concerning KRUM
and its activities around 1970 see Thomas Mathiesen, The Politics of Abolition. Essays in Political
Action Theory (Oslo: Universitetsforlaget 1974), pp 37-120.
31
Nilsson 1996, p 150.
32
Henrik Tham, Lag ord ordning som vnsterprojekt?: socialdemokratin och kriminalpolitken, in
tta reflektioner om kriminalpolitik (Stockholm: Br-rapport 1999:9).
17
30

that criminal justice politics have become a much more debated topic, where the
politicians often can score easy political points.33
Theoretically, the change has meant a gradual decline of rehabilitating
solutions and an increasing accentuation on general prevention and equal
punishments. As for the prisons this has meant tough budget cuts, less staff (about
10% the last 5 years), and heavily reduced treatment programs.
In comparison with most other countries the Swedish prison system during the
20th century has been free from serious disturbances. In the last decade the situation
has partly changed. The number of lifetime and other longtime prisoners has
increased dramatically in the 1990s. Several prisoners have been killed by other
inmates. Outlaw motorcycle gangs and other criminal alliances have caused serious
problems. The effective time served before pardon has increased and more restrictive
security regulations have been adopted. The day-to-day relations between prisoners
and staff have become more problematic. The climate in the prisons has clearly been
tougher, culminating in 1994 when the biggest prison-riot in one hundred and fifty
years took place. In a way the development in the Swedish prison system could
perhaps be seen as a normalization compared to other European nations.
It has now been announced that the Minister of Justice is planning to appoint a
committee whose task will be to prepare for a new law for the treatment of offenders.
It has specifically been stated that one of the points that the committee is to deal with
is the question of differentiation and, thus, to make suggestions for more effective
ways of dealing with the criminal gangs and the violence inside the prisons.
Many commentators have put forward the opinion that the Swedish prisons
today are in a state of crisis. No doubt the prisons today are exposed to several
problems. But, if one is to do a serious analysis of the situation the talk of a crisis is
rather misleading and suffers both from inadequate contextualisation as well as
conceptualisation. To be used in a meaningful way the word crisis should also be seen
as a relatively short-lived phenomenon, a sort of turning point. If one looks at the
history of the prisons it is very clear that they almost from their birth have been
followed by what could be seen as a crisis-discourse. It could even be argued that
the crisis, thanks to the utopian undertones of the prisons, is built into the system
itself.
What is called a crisis is rather a description of what even with a brief look
at the history of the prison system must be seen as a structural phenomenon. It
could also be argued that the crisis in a way only could become more serious as the
demands and expectations on the prison system rise. This crisis-discourse as well as
the myth of the great reform has played a central role for generations of prison
reformers. In the Swedish case it is also clear that this has been a part of the Welfare
State and the reform-discourse that was an integrated part of it.
VII.
Although it is difficult to draw any definitive conclusions about the present
condition and ongoing changes, some tentative remarks could be done. Prisons must
be regarded as something more than an alternative to other forms of penalties based
on criminal law. Quantitatively, they have exemplified a new way of punishing
people, which in many ways also have changed our views of society and of man.
The history of the prisons could be seen as their gradual disappearance from
the center of society to its margins. In the 19th century they were both literally and
33

Henrik Tham, From treatment to just deserts in a changing welfare state (Stockholm: Department of
Criminology, University of Stockholm 1996).
18

metaphorically at the center of society; they were a great pride to the reformers that
planned and built them, they were something to show to princes, high politicians and
famous writers; and they were at the center of the social debate. They were erected in
the center of the towns so that everybody could see them; they were built at enormous
cost and many of them had a standard that went well beyond what the majority of
prisoners experienced in their daily lives. Today, the prison is not something of which
to be proud, but rather to be embarrassed. No visitor today will, as Fredrika Bremer
did, leave the prison uplifted in the spirit, and nobody will see them as proof that we
live in a golden era.
But at the same time, the history of the Swedish prison system could be
described as a successful failure. From a perspective that predominantly measures
the success or failure of the prison in its ability to rehabilitate criminals the system no
doubt seems a failure. But this is not the only way to judge the success of prison. It
must be underlined that the failure of prisons cannot only, as has been most
exclusively done in the past, be discussed from the point of view of prison reformers
or progressive lawyers, or from what has been presented as the manifest purpose of
prisons. There is no institution whose tasks and functions can be defined by one
criterion only. Success in one respect may entail failure in another, while
circumstances may alter from one period to another. If we want a genuine historical
explanation we must have this in mind.
Thus the Swedish prisons developed into very successful institutions and
here its longstanding use of the Philadelphia system and the fact that the majority of
the prisons were small no doubt played a central role when it came to producing
obedient, disciplined prisoners, upholding security and control as well as ensuring
that those who where sentenced to imprisonment were held inside bars. Within the
environment and within the order represented by the prisons the disciplinary
techniques worked in society their effects turned out to be limited. This success
has not been an insignificant cause of the consolidation of prisons.34
It must be said that the Swedish prison system from its beginning up until
today has enjoyed a remarkable high degree of legitimacy, that is power which is
perceived as morally justified. With the possible exception of the late 1960s its
existence has never been seriously questioned. One main reason that the prisons have
maintained their legitimacy is that they, among larger groups or powerful interests,
never have been seen as distinctly unjust. The prison has been regarded as a safeguard
both for a traditionally oriented middleclass with law-and-order opinions, and as a
support for a working class dominated by an ethos built on hard work,
conscientiousness and social responsibility. The prison was for those who deserved it:
The dangerous, those who threatened the property rights and the lumpenproletariat.
The prisons have never in any flagrant way been used by the state or the ruling
classes as an instrument of class war. Likewise, it has only in a very limited sense had
any explicit political functions.
It is also very clear that Sweden has not been immune to the international
trends towards more authoritarian and disciplinarian solutions in the criminal sector,
including the prisons. It is also noteworthy that the difference in attitude between the
1960s and 70s and today is in many ways striking. One of the most interesting facts is
that when the pressure for reform during the 1960s and 70s generally came from
outside the Prison Service, the situation today is reversed. While the employees in the
1960s and 70s were looked upon as hostile to the reforms and as such were heavily
criticized, today they seem much more positive.35 Here, as I see it, is one reason not
34

Nilsson 1999, pp 446-50.

This reflection is based on personal observations and conversations with employees, as well as,
different publications and articles produced by the Swedish Prison and Probation Service.
19

35

to be totally pessimistic. There are also some important trends that could be seen in a
more positive light. There are many examples of good work carried out in prisons
today and soon the correctional officers will be starting a new education program for
prison. But having said that, it must be noted that there is very little support among
the public for prison reforms in general or for the prisoners as a group.
If we look for the reasons for the changed situation in the 1980s and 90s
towards a tougher and more restrictive criminal policy it is clear that the explanations
must be sought in several directions. The official crime statistics show a steady
increase in the period 1950-1990. But during the last decade, and that is of course
another very important point, the total crime rate has most certainly not gone up.36
This also means that a rising crime rate per se could not be a reason for the tougher
criminal politics in the last decade. The explanations must be sought elsewhere.
At the most general level the decline of the Welfare State and its gradual
replacement by a more market-oriented and individualistic society must be taken into
account. Swedish society has also in the last decades been exposed to strong tensions.
A deep economic recession some would say depression struck the country in the
first half of the 1990s. Growing ethnic antagonisms as large refugee groups came into
the country; rising economic and social inequalities in the form of increasing income
gaps and housing segregation, unevenly distributed education possibilities; growing
generation gaps, etc., as well as what could be seen as a general ideological
disorientation, have also been put forward as explanations.
The almost morbid fascination with crime, violence, drugs, and other
tragedies and problems that the media show have also clearly played an important
role, even though its exact range is hard to prove. The prevailing media-discourse
concentrates around the concept of the criminal especially the violent and
dangerous criminal. So if the total crime rate has not gone up, there is without doubt a
widespread, to a large degree media-produced belief that it has.37
VIII.
During the first decades of the 20th century the great powers were involved in
an intensive arms-race at sea. All the great powers grossly extended their fleets. And
the most important ships were the great battle-ships, the flag-ships of the fleets. When
building a battle-ship three main factors must be taken into account: armor, speed and
fire-power. The delicate task to reach the highest efficiency is to find the perfect
balance between these factors: a heavily armored ship wins in shelter and fire-power
but loses in speed; a lighter and faster ship wins in mobility but loses in fire-power,
etc.
In a way the prisons could be likened to the battle-ships. Just as the battleships, they were for a long time the flag-ships of the punishment systems. Just as the
battle-ships from the Second World War lost their positions as flag-ships to the
aircraft carriers, the prisons in almost every country have lost their position as the
foremost part of the system to community sanctions and other non-custodial
sanctions.

36

See von Hofer, Brott och straff i Sverige. Historisk kriminalstatistik 1750-1984. Diagram, tabeller
och kommentarer (Stockholm: Statistiska centralbyrn 1985); Brottsutvecklingen i Sverige 1998-2000
(Stockholm: BR-rapport 2001:10).
37
Ester Pollack, En studie i Medier och Brott (Stockholm: Institutionen fr journalistik, medier och
kommunikation, Stockholms universitet 2001).
20

In most countries prisons have lost accelerating speed and progress only very
slowly. In almost every country the fire-power in terms of what they deliver is very
short-ranged and have a very low precision. But they still have strong armor that
protects them and makes them resistant to most assaults.
I dare not to press the point any longer and describe the prisons as sinking and
defenseless ships.39 In his highly stimulating and abolitionist promoting book Could
the prisons be defended? the Norwegian criminologist and sociologist Thomas
Mathiesen surely thinks of them in this way.40
38

Conclusion
If we look at the period from the middle of the 19th century until today we can
sea very significant decline in the size of the prison population. The lowest figures
stand for the inter-war period followed by a rising tendency up to 1970. During the
last three decades the figures have oscillated around 60 per 100 000 inhabitants.
However in the last four years the implementation and extension of electronic
monitoring and community service has in practice led to a 20% decrease in prison
population.41 It should also be said that the first evaluations of these changes have
been very positive
One conclusion from this is that it is possible to resist the trends towards
increasing prison populations, even in an ideological climate that clearly has been
tougher. When this is said we must have in mind that the crime rate is just one factor,
and perhaps not even the most important one, that influences the size of the prison
population. How many people we put into prison and how we deal with them is very
much a political and ideological choice.

38

The big exception from this trend in the western world is of course The United States where the
prison population has increased during the last decades. This goes also, in a lesser degree, for Great
Britain. The rising prison population in these countries has resulted in a large literature. See, for
example, Nils Christie, Crime Control as Industry. Towards GULAGS, Western Style (London:
Routledge 1993); Christian Parenti, Lockdown America. Police and Prisons in the Age of Crisis
(London: Verso 1999)
39
It could of course be pointed out that the most important factors arent the ships or the prisons design
but the quality and quantity of the staff and the managers.
40
Thomas Mathiesen, Prison on Trial (Waterside: Winchester 2000).
41
Kriminalvrdens rsredovisning for the years 1999 and 2000 respectively (Norrkping:
Kriminalvrdsstyrelsen).
21

PRISONERS (HUMAN) RIGHTS AND PRISONERS LITIGATION

IN THE NETHERLANDS
Gerard de Jonge1

n this paper, I will try to give you an impression of the theory and practice of
prisoners litigation in The Netherlands. To open the banquet, I offer a starter of
quick facts about my native country. The soup course is a short outline of
Dutch criminal law and the Dutch criminal justice and sanction system. A main
course follows consisting of a description of the Dutch prison system, the pertinent
penitentiary laws and regulations and the various ways in which prisoners can
challenge prison personnel decisions. This will be seasoned by illustrations of some
recent prisoners litigation case as handled by our national Dutch jurisdiction and by
the European Court of Human Rights in Strasbourg (France). For dessert, some
thoughts on the meaning of Imprisonment will be presented.
1. Netherlands Quick Facts2
The Netherlands or Holland as some call it is bordered by Germany in
the east, Belgium in the south and the North Sea in the west and north. Half of the
country lies below sea level. (That s why the Dutch are the tallest people in the
world). The Netherlands is a constitutional monarchy with Queen Beatrix as the
present constitutional Head of State. The Netherlands is also a parliamentary
democracy with Amsterdam as our capital and The Hague as the seat of government.
As you know The Hague also is the seat of the International Criminal Tribunal for
Former Yugoslavia, the International Criminal Tribunal for Rwanda and will in the
near future be the seat of the permanent International Criminal Court.
Holland measures 16,000 square miles (slightly less than twice the size of New
Jersey) with a population of about 16 million, of whom 34% are Roman Catholic, 24
% Protestant, and 3% Muslim. Life expectancy of Dutch males and females is 75 and
81 years respectively. Dutch Gross Domestic product is $23,000 per capita, produced
by agro industries, metal and engineering products, electrical machinery and
equipment, chemicals, petroleum, construction, and fishing. The good old touristimage of a land of tulips, windmills and clogs may have been overshadowed by the
phenomenon of the so-called coffee-shops where anything but coffee can be obtained.
2. Dutch criminal law, the criminal justice system, penalties and measures
The Criminal Law
What you might call the first codification of criminal law in the Low
Countries is in the early sixteenth century when Charles the Fifth produced the
Peinliche Gerichtsordnung (1532) or Carolina. In the late 16th century, this codex
1 Copyright 2002 Gerard de Jonge, published here by permission. Correspondence should be
addressed to Maastricht University, Faculty of Law, Department of Criminal Law and Criminology,
P.O. Box 616, 6200 MD Maastricht, The Netherlands.
2 MapQuest.com, Inc.

23

was replaced by the Criminele Ordonnantin (English: Criminal Ordinances), a

creation of the Spanish king Philip II. From 1570 to 1811 this constituted the basis of
the material and formal criminal law in our region. Following the French Revolution,
The Netherlands were part of the French Empire from 1811 until 1813. As a result,
our country inherited the French Code Pnal (Criminal Code) and Code dInstruction
Criminelle (Code of Criminal Procedure). They suited us so well that we kept them
(in an adapted form) until long after the end of French occupation. Only in 1886 did a
genuine Dutch Criminal Code come into force. It has been amended many times since
of course, but its basics are still valid. In 1926, the first Dutch Code of Criminal
Procedure came into force and we still use it, although it has often been modernized;
more often than the Criminal Code. Both Codes contain few stipulations relating to
the enforcement of penal sanctions. The development of the penitentiary is another
story, which I will tell shortly.
Dutch law belongs to the so-called Romano-Germanic Law Family with its
emphasis on codification as opposed to the common law that has developed in
England and the United States and the prominent role played by it in the courts.3
As we are today in Missouri, it might be worthwhile noting in passing that slavery
was abolished in Dutch Surinam and the Dutch Antilles in 1863. The death penalty
was abolished in Holland in 1870.
The Criminal Justice System 4
In giving you a sketch of the Dutch criminal justice system, I will restrict
myself to a short description of our prosecution service and the courts. I will not talk
here about the police service and the probation service will only be mentioned in
relation to the administration of prison sentences.
The Prosecution Service. The Dutch prosecution service is a nationwide organization
of prosecutors, organized to correspond to firstly the courts and then the courts of
appeal. Hierarchically the service is controlled by a Board of Attorneys-General,
which formulates and publicizes guidelines for the investigation and prosecution of
criminal acts. Overall, responsibility lies with the Minister of Justice. The prosecution
service is seen as a part of the judiciary. Judges are called the sitting judiciary; the
prosecutors belong to the standing judiciary. Approximately 2,500 people work for
the prosecution services of whom around 450 are public prosecutors.
Unlike judges, public prosecutors are not appointed for life, except for the AttorneyGeneral to the Supreme Court and the so-called Advocates-General to the courts of
appeal. The main task of the prosecution service is to direct police investigations in
major cases and to determine which cases should be brought to court and which
cases can be dealt with by an out-of-court settlement or a community service order.
Nota bene: plea-bargaining between prosecution and defense lawyers so important
in your system - is not a feature of Dutch criminal procedure.
3 Ren David and John E.C. Brierly, Major Legal Systems of the World Today, London, 1985.
4 For further reference: Peter J.P. Tak, The Dutch Criminal Justice System Organization and
Operation, WODC - Serie Onderzoek en beleid No. 176, Den Haag 1999,109 pages.

24

The Court System. Unlike here, Dutch judges are appointed for life by the
Crowna joint decision by the Minister of Justice and the Queen. In law, they have
to retire at 70.
Foreigners may find a visit to a Dutch criminal court rather boring. Even the
most serious cases may be dealt with in a few hours, provided the defendant has
confessed. Even if not and there are no or few witnesses to be heard, the court can
proceed very quickly by going over the written documents (police reports) with the
defendant in an abbreviated way, listening to the prosecution and the defense and
delivering its decision within a fortnight. Criminal cases are dealt with by criminal
courts at four levels. The lowest level is formed by the 62 sub district courts
(kantongerechten) that handle misdemeanors only. The 19 district courts
(arrondissementsrechtbanken) handle crimes in chambers of one or three judges. The
third level is that of the five courts of appeal (gerechtshoven) that sit on appeals from
the district courts. The top level is filled by the Supreme Court (Hoge Raad der
Nederlanden). The Supreme Court is competent to review a decision in cases where
the law has been improperly applied or the rules of due process and fairness of
procedure have allegedly been violated.
Very important for our national jurisdiction is the European Court of Human
Rights in Strasbourg, whose decisions are binding in Dutch national law.
As Dutch criminal procedure has no jury system and not all proof has to be shown in
court, the emphasis of Dutch criminal procedure lies on the preparatory phase
preceding the court sessions.
Penal Sanctions
Dutch penal sanctions for adults5 may be divided into penalties and
measures. For a suspect punishment can only be meted out when a certain level of
guilt (mens rea) of the suspect has been proven. Penal measures may be imposed
even when guilt was absent.
The main penalties are: imprisonment (from one day to life), a so-called tasksanction (consisting of a community service order of 240 hours max. and/or an
educational order of 240 hours max. and a fine (5 guilders/ $ 2 up to 1 million
guilders/ $ 400,000)6. A number of combinations are possible.
In Holland, very few people serve a life sentence: in May 2001, only 10 persons
sentenced to life were in Dutch prisons.
Of the various penal measures mentioned here, I will only deal with those
involving deprivation of liberty. These are: psychiatric hospital orders
(terbeschikkingstelling the court determines the length of detention) and the penal
care of drug addicts (strafrechtelijke opvang verslaafden - 2 years max.).
The psychiatric hospital order is reserved for offenders who have committed
very serious crimes and who are considered partially or entirely mentally
unaccountable for their crime. Offenders under such hospital orders are placed in
specialized - top security - custodial psychiatric clinics.

5 A different system counts for juveniles,

6 From January 1st 2002 these amounts will be changed into Euros ().

25

In sentencing, the Dutch judges can choose between the general legal
minimum of 1 day or 5 guilders (even for suspended sentences) and the specific
maximum belonging to the offence proven.
Dutch criminal law contains no offences with pre-determined or fixed penalties; even
if murder has been proven, the sentencing judge is free to choose from all the options
between the general minimum and the possible, in this case, life sentence.
3. The Dutch prison system prison population
Prison System7
For adults8, the Dutch prison system consists of 52 penitentiary institutions
(PI), organized in 20 regional clusters. Each penitentiary institution is divided into
different units with different regimes. Institutions may be closed, half-open or open.
All institutions are government-run. As yet, private enterprise plays - no role in the
execution of penal sanctions, with the exception of Curaao9, where the Wackenhut
Corporation runs the only prison. The Minister of Justice is responsible for the
enforcing of sentences. The National Agency of Correctional Institutions is an office
of the Ministry of Justice. Working under assignment from this Ministry, the agency
enforces custodial sentences and measures. A section of the Dutch Advisory Council
for the Administration of Criminal Justice and the Protection of Juveniles visits and
inspects all penitentiary institutions on an ad hoc regular basis and sends its reports
and recommendations to the Minster of Justice. The treaty-based European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment does the same.10
The official capacity of the prisons in 2000 was 12,600. Prison staff numbered
12,000. On January 1st 2000, 11,500 people were confined, of whom more than 1,000
were in administrative aliens detention.11 Slightly fewer than 80 per 100.000
people are confined. This is a European average. Detention in a normal closed
institution costs the Dutch taxpayer an equivalent $ 120 a day.
The London based Kings College International Center for Prison Studies, web
site gives data 12 for almost all countries in the world. At present, the USA has more
than 2 million prisoners or 700 per 100,000 of its population. The USA is closely
followed by the Russian Federation with almost 1 million prisoners or 664 per
100,000. Third, comes the Republic of South Africa with 160,000 prisoners or 400
per 100,000 of its population. The Peoples Republic of China says it has 1.5 million
prisoners or 112 per 100.000 of its population. In contrast, Iceland only has a total of
82 prisoners or 29 per 1,000,000 of its population. The same source informed me that
the State of Missouri has a daily average of 32,300 prisoners and has a prison
population rate (per 100,000 of state population) of almost 600. I understand that in
7 For a comparative study of the Dutch and US Federal Prison Systems see: Arjen Boin, Contrasts in
Leadership An Institutional Study of Two Prison Systems, Delft 1998, 244 pages.
8 Custodial Institutions for juvenile offenders have no connection with the prisons for adult offenders.
9 An island in the Dutch Antilles still part of the Dutch Kingdom.
10 www.cpt.coe.int For further reference: Malcolm D. Evans & Rod Morgan, Preventing Torture A
Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment, Oxford 1998 and Rod Morgan & Malcolm D. Evans, Protecting Prisoners The
Standards of the European Committee for the Prevention of Torture in Context, Oxford 1999.
11 Ministerie van Justitie, Feiten in cijfers, www.dji.nl (August 2001)
12 www.prisonstudies.org

26

the US, Texas is the absolute leader with 200,000 people inside, leading to a prison
population rate of one thousand per 100,000 of its state population.
Europeans find it very difficult to understand why the biggest democracy in the world
(in relation to its population) locks up more people than anywhere else.
Prison Population Characteristics
Back to Holland. What is the composition of our prison population? Well, 6,2
% of all prisoners are women (March 31 2000). Most prisoners are between 20 and 40
years old. 71% have Dutch nationality, but only 51% of all prisoners have Holland as
their native country. Almost 2/3 of all prisoners stay in remand centers either as
untried prisoners or as aliens waiting for expulsion. Prison sentences up to 3 months
are also served in remand centers. Over 40,000 people serve some time in prison each
year (annual turnover) Thanks to a lot of very short prison sentences, the median
time served is about 6 months. About 40% of prisoners serve up to one year (gross
duration), another 40% serve sentences of one to four years (gross), which leaves
20% of sentences lasting 4 years or more. However, gross duration does not take
into account that inmates who have served two-thirds of their sentence may be
released early. One condition for early release is that a sentence must consist of at
least six months of non-suspendable imprisonment. In the past, early release
depended on good behavior but it has now become a standard right, which can only
be denied for reasons of serious misconduct.
Ample staffing, private cells, and small detention units prevent the development of
gangs and inmate-violence in Dutch prisons
4. Penitentiary law
Penitentiary Laws and Regulations
The first nationwide penitentiary rules date from 1821 when King William I
issued a Royal Decree entitled Organisatiebesluit, which marked the start of the
centralization of the existing scattered prison system in which prisoners had no rights
whatsoever. From 1596, when the first Dutch penitentiary, the Amsterdam Rasphuis,
was founded13, until 1821 prisons had been governed by boards of trustees
(regenten). The first Prison Act dates from 1886. It contained along with many
obligations the first prisoners rights, such as the right to be heard before
disciplinary punishment was imposed and the right to lodge an appeal with the
college of regents if their requests to be exempted from obligatory religious exercises
had been refused by the governor.14 It took until after World War II before the
prisoner was seen, not only as an object but also as a subject of penitentiary law. The
new Prison Act that came into force in 1953 formulated a lot of prisoners rights, not
so much as subjective rights that could be enforced by the prisoners themselves15,
13 On Western European prison history see: Pieter Spierenburg, The Prison Experience Disciplinary
Institutions and Their Inmates in Early Modern Europe, New Brunswick and London, 1991.On
modern Dutch prison history, see: Herman Franke, The emancipation of Prisoners A Socio-historical
Analysis of the Dutch Prison Experience, Edinburgh 1995. Both works fit beautifully together.
14 Herman Franke, l.c., p 136-137.
15 With one exception: prisoners could from1953 onwards appeal against unwelcome transfers to
other penal institutions and were entitled to request transferals to more favored institutions.

27

but as obligations on the wardens who were accountable to the Ministry of Justice.
For the first time in history, this Prison Act formulated the main goal of custodial
sentences to be as far as possible the preparation of the person involved for
reintegration in the community. A major amendment of the Prison Act in 1977
granted prisoners a right to send complaints to an independent complaints committee
against (perceived) infringements of their penitentiary and civil rights. This and the
coincidence of a new, government financed, legal aid system coming into force
stimulated prisoners rights litigation and led to a much-needed clarification of the
legal position of prisoners in relation to the prison authorities. The prison staff at first
was reluctant to accept this juridical emancipation of prisoners and feared a loss of
authority. This attitude soon faded away when the staff realized that clarity about the
meaning of prison rules and regulations was in the interest of all parties involved.
Today three acts cover the legal position of all categories of convicts. That of
mentally unaccountable persons placed under a hospital order is laid down in the
Hospital Order Principles Act of 1997. Then there is the Penitentiairy Principles Act
(PPA) of 1999 for remand and sentenced prisoners (this act replaces the Prison Act of
1953). On September 1st of 2001, the brand new Principles Act for Juvenile
Institutions came into force. All these acts are elaborated in the accompanying
regulations.
I now turn to prisoners rights and obligations in the Penitentiary Principles
Act of 1999 and on the procedures by which prisoners can lodge complaints about
their treatment.
Prisoners Rights and Prisoners Obligations
For this paper, I can only highlight the most important rights and obligations
in the (PPA). Prisoners material and formal (procedural) rights are absolute (must
under all circumstances be respected) or relative (can be granted, denied or modified).
Material Rights
Inmates have the legal right to:
* participate in a penitentiary program (relative)
This is a new legal right appearing in our national detention law. Penitentiary
programs offer inmates the opportunity to serve out the final phase of their sentences
beyond institutional walls, rather than in detention. They last from a minimum of six
weeks to a maximum of one year. Participants are returned to a closed institution if
they dont meet the standards of the program. Although penitentiary program
participants reside outside penitentiary institutions, they are only granted limited
freedoms and are monitored, electronically and by the probation service. Those
programs consist of mandatory participation in activities for at least 26 hours per
week.
* accommodation allowing separation of male and female prisoners (absolute)
* accommodation for young children to stay with their parent (relative)
* leave the institution temporarily (relative)
* interruption of a sentence (relative)
* send and receive letters and other items by post (relative)
* send and receive uncensored letters to and from certain privileged persons (absolute)
* receive visitors (relative)
* receive unsupervised visits from certain privileged persons/ legal suites (absolute)
* conduct phone conversations (relative)
* conduct a conversation with a media representative (relative)
* freely profess and practice ones religion or ideology (absolute)
28

* receive the care of a physician connected with the institution or ones substitute
(absolute)
* consult , at ones own expense, a physician of ones choice (absolute)
* social care and assistance (relative)
* food, clothing (absolute)
* possession of certain types of objects (relative)
* participate in work available in the institution (relative)
* follow educational courses and to participate in educational activities (relative)
* take cognizance of news at ones own expense and to use a library facility once a week
(absolute)
* physical exercise and sports (relative)
* recreational activities (relative)
* stay in the open air daily for at least one hour (absolute)
* be informed of ones rights and obligations under this Act in writing and as much as
possible in a language one understands (absolute)
* be informed of ones right to have the consular representative of ones country notified
of ones detention (absolute)
* be heard by the governor before taking specific decisions (absolute)
* be given reasoned, dated and signed written notifications of specified decision
(absolute)
* to take cognizance of the case documents (relative)
* be assisted by a lawyer (absolute) or another fiduciary (relative)
* consultation with the governor concerning matters that directly affect the
detention (relative)
The so-called Penitentiary Order lists some more rights
* The right to a minimum day program (relative)
* The right of access to ones penitentiary file (relative)
Obligations and Disciplinary Measures and Sanctions
Some of the numerous obligations for prisoners and the disciplinary
sanctions they risk for non-compliance are listed below:
Obligations.
* to obey any orders issued by the governor in the interest of maintaining order or
safety in the institution or in the interest of undisturbed implementation of the
deprivation of liberty.
* to have ones body or clothes searched when necessary in the interest of
maintaining order and safety in the institution
* to provide urine for testing for the presence of drugs that alter behavior
* to allow ones body be examined if necessary to avert serious risk to the
maintenance of order or safety in the institution or to the prisoners health.
* to tolerate specific medical interventions if necessary to avert serious risk to the
health or safety of the prisoner or of others
* to have ones cell examined for the presence of forbidden objects
* to submit to physical force or devices to restrict personal freedom if necessary
to maintain order or safety in the institution.
* to perform work assigned to him or her by the governor both inside and outside
the institution or wing (sentenced prisoners only)
Disciplinary measures and sanctions. Under the heading Maintenance of good
order the governor is allowed to:
29

* as a measure exclude prisoners from partaking in one or more activities

* as a measure place, prisoners in solitary confinement for a maximum period of
two weeks (each time extendable with the same maximum period)
* punish prisoners for acts that endanger the order or safety in the institution by
confinement in a punishment cell or other cell for an maximum period of two
weeks (not extendable); cancellation of visits for up to four weeks; exclusion
from participation in one or more specific activities for a maximum period of
two weeks; refusal, cancellation or restriction of the next leave; a fine up to a
maximum amount of twice the weekly wages current in the institution;
Formal rights- modes of redress. Whenever inmates think their material rights are
violated or they have been punished for not fulfilling their obligations, they may
lodge a complaint. To permit this, the Penitentiary Principles Act and accompanying
Penitentiary Order allot inmates the following procedural rights. They are all absolute
rights. No one can be forbidden to make use of them. Lodging a complaint cannot be
punished.
Inmates are entitled to:
* object against decisions concerning placing in or transfer to a particular institution
or unit (absolute).
* lodge a petition concerning placing in or transfer to a certain institution or unit
(absolute).
* lodge a petition concerning placing in a penitentiary program (absolute)
* file a complaint with the Complaints Committee concerning a decision taken by or
on behalf of the governor (absolute)
* pending the outcome of the complaint review: request suspension of the
implementation of the decision to which the complaint relates
* appeal against the Complaints Committees decision (absolute)
* pending the outcome of the appeal request suspension of the decision of the
Complaints Committee
* appeal against decisions concerning placing, transfer, participation in a
penitentiary program, leave, and interruption of a sentence (absolute)
* appeal against medical intervention (absolute)
Space forbids me to go into the details of prisoners rights litigation
procedures. Let me say this: the procedures are considered to be administrative ones.
The Complaints and Appeals Committees are well separated from the prison
administration and are in this sense independent and impartial. The procedure is
contrary in all instances while free legal aid can be obtained without much effort. The
Complaints and Appeal Committees put prisoners complaints to the following test:
30

1) is the decision to which the complaint relates contrary to a statutory regulation in

force in the institution or a stipulation binding upon all parties of a treaty in force in
the Netherlands; or 2) must this decision be deemed unreasonable or unfair, in
weighing up all relevant interests?
The decisions of the Complaints and Appeal Committees are binding for (and
respected by) the governors. The most important decisions are publicized and
accessible to the prison administration, inmates and the general public.
5. Some prisoners rights litigation cases
What do prisoners in Holland complain about? A quarter of all complaints
against decisions by the governor are directed against disciplinary sanctions. Another
important item in prisoners litigation cases concerns decisions of placement in and
transfer to specific penal institutions. Refusal of requests for temporary leave from
the institution is also often the subject of litigation. Apart from these examples, many
varieties of complaints are lodged. Research has proven that only a minority of all
complaints are trivial or peanuts. Many cases are stricken off the roll of the
Complaints Committee after mediation by a member of the (independent)
Supervisory Committee that is attached to each prison or prison-unit.
To give you an idea of prisoners litigation based on the Penitentiary
Principles Act I supply two examples.
The Day Program case16
The first example concerns the length of the day program in institutions with a
normal regime, that is to say a non-restricted association regime. A day program
covers the period between unlocking the cells in the morning and the night lock-up.
The 1999Penitentiary Order stated that the minimum duration of the day program
should be 88 hours a week. For prisoners in a non-restricted regime this meant that
they could be out of their cells for at least 88 hours per week. This, however, was not
the interpretation of their governors. Due to new labor laws, the governors said it was
impossible to bring the warders duty-roster in line with the requirements of the law.
The governors solution was to only unlock the cells in the morning to hand out
breakfast and than close them again for almost an hour as another regulation allowed
them, they claimed, to lock prisoners in their cell to eat their meals. Another hour was
gained by the governors by a special interpretation of the lock-up procedure at the
end of each day. The result was that prisoners claimed their day- program was
shortened illegally by some 14 hours a week. Numerous complaints were filed and
they resulted in quite a number of decisions by the Appeals Committee, saying the
prisoners were right: A day-program of 88 hours meant 88 hours out of their cells.
Governors could not solve personnel problems by overruling this legal right. Their
practice must conform to the rules and the complainants had to be compensated for
the missed hours.
However, the prisoners triumph was short-lived. The assembled governors
successfully lobbied to alter the rules of the game and in October 2000, the
Penitentiary Order was formally changed: the day program was shortened from 88 to
78 hours.
Was prisoners litigation in this case contra productive to their cause in this
case? In a one way: yes. However, looking at it another way one can say that by
16 Appeals Committee - BrC 19 October 1999 A 99/557/GA; idem BrC 5 January 2000 A
99/998/GA; BrC 31 May 1999 A 99/184/GA

31

taking this issue to the prisoners court the governors had to explain their policy and
were reminded of their duty to stick to the law. Another positive effect was that the
highest levels of the Ministry of Justice were compelled to investigate the matter,
even if it did lead to a reduction of the day-program.
The Methadone case17
As I said, modern Dutch prison law allows prisoners to appeal for medical
intervention. This has proven to be of great importance for a special category of
inmates: those addicted to hard drugs and taking part in Methadone programs outside
of prison. When they were jailed, they were at the mercy of the local prison doctors:
most of whom did not continue the methadone program inside prison and who mostly
did not even consult their colleagues who had prescribed methadone outside. This led
to many complaints, leading to a nation-wide policy for the supply of methadone to
incarcerated junkies who were already following a methadone program outside. Of
course, no doctor can be compelled to prescribe the drug, but should a prison doctor
refuse to do so, another medical doctor may do so.
In this way, prisoners litigation has had a decisive influence on the treatment of
inmates.
It may sound unusual to an American audience, but many international treaties
are directly binding on Dutch citizens and government authorities. So is the European
Convention of Human Rights (ECHR). This Convention not only affects open
society, but also is of great importance for the treatment of offenders. Paragraph 3 of
this convention says: No one shall be subjected to torture or to inhuman or degrading
treatment or punishment. This provision is often invoked by prisoners to protest
against inhuman prison conditions. But also other provisions, like the right to privacy
and family life (Par. 8 ECHR) Decisions of the European Human Rights Court
are highly respected, not only by the government who is considered to have violated
this or another human right, but also by the governments of all parties to this treaty.
Here are two examples of (European) human rights cases, started by prisoners
that are of great importance for the development of international standards for the
treatment of prisoners.
Fit for detention? The Thalidomide Case. 18 Miss Price is a Thalidomide-victim
and as such severely handicapped: she is four-limb deficient as a result of
phocomelia, caused by this drug. In the course of civil proceedings in a British Court,
she refused to answer certain questions. Treating this as contempt of court, the judge
committed her to prison for seven days wheelchair and all. As the prison involved
had no facilities to deal with the special needs of the handicapped women, she
suffered great inconvenience during her short stay there. Miss Price claimed Article 3
of the Convention had been violated. The Court found that the judge who sent her to
prison had not directly considered the questions whether Miss Prices physical
condition allowed her to be detained or whether the prison system could deal with
her at all. Considering her actual treatment (or lack of adequate care) the Court found
there was a violation of Article 3 in this case. I quote the Court: [T]he Court
considers that to detain a severely disabled person in conditions where she is
17 Appeal Committee -BrC 17 February 2000 A 99/1133/GM and BrC 17 February 2000 A
99/1201/GM;
18 European Court of Human Rights, Price v. United Kingdom, Application no. 33394/96 , Judgment
10 July 2001. www.echr.coe.int

32

dangerously cold, risks developing sores because her bed is too hard or unreachable,
and is unable to go to the toilet or keep clean without the greatest of difficulty,
constitute degrading treatment contrary to Article 3.
The importance of this piece of prisoners litigation lies in the fact that from
then on national judges in Europe have had to consider whether a person is physically
fit for detention and /or whether the prison system disposes of adequate facilities to
deal with physical handicapped convicts. If not sending someone to prison can lead to
a violation of Article 3 and thus is illegal.
Censoring letters of prisoners: only if national law permits it19. In the case of Mr.
Messina v. Italy, the Court specified the legal conditions under which letters from and
to prisoners may be censored by prison authorities. Competence must be legally
established. The period during which a particular detainees correspondence is subject
to censorship must be fixed. Reasons for the censorship must be declared and the
means by which the censorship will be exercised must be made clear.
6. The aim of corrections and prisoners litigation
Ladies and gentlemen, the way prisoners are treated tells the observer
something about the level of civilization attained by the involved society. The
treatment of prisoners directly reflects the aims lying behind the detention of
offenders: their mere incapacitation or their reintegration into society. If reintegration
is the goal, prisoners have to be treated as legal subjects which in turn implies that
prisoners litigation be taken seriously.
The penitentiary system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation.
International Covenant on Civil and Political Rights, Article 10 (3)
Every prisoner shall be allowed to make a request or complaint, without censorship
as to substance but in proper form, to the central prison administration, the judicial
authority or other proper authorities through approved channels.
Standard Minimum Rules for the treatment of prisoners, Article 36 (3)

19 European Court of Human Rights, Messina v. Italy, Application no. 25498/94, Judgment 28
September 2000.

33

THE CORRECTIONS SYSTEM IN HUNGARY

Andrea Dombrdy1

s it is known, Hungary is an East European country. This is important

because of the development of its legal system. Being East European
means the basis of the legal system is not case law as in the United
States, but continental. In Hungary the norms of proper behavior are
incorporated into codes, so the action should be judged upon the coded, written
law. Stare decisis is minimized, previous cases only slightly or do not alter the
judgment of the court.
The prescriptions of all law are laid down in codices and it is so with
criminal law. The rules of substantive criminal law can be found in the Criminal
Code, while the procedural rules are declared by the Act on Criminal Procedure.
The rules of enforcement are in the Law-decree on the Execution of
Punishments. (Table I)
The reason why this brief survey upon the structure of criminal law has
been taken is the fact that all three areas deal with penitentiary provisions.
TABLE I
The Criminal Code consists of two parts:
Specific:
lists the behavior, which is unlawful - so results in the commitment of crimes and
ordered to be punished by the law and gives the measure of the punishment
General:
Scope of the Criminal Code,
Basic definitions of the notions (like The Act of Crime, Attempt and
Preparation, Perpetrators),
Obstacles of Criminal Prosecution,
Punishments
Principle punishments:
imprisonment
labour in the public interest
fine
Supplementary punishments:
prohibition from public affairs
prohibition from profession
prohibition from driving vehicles
banishment
expulsion
confiscation of property
fine as supplementary punishment
The Act on the Criminal Procedure consists of the rules of the conduct of the procedure:
Principles of the Criminal Procedure,
Persons (accused, defence, authorities, courts etc.),
Rules of the procedural actions (terms, periods, notification etc.),
Rules of probation (means of evidence, procedure of probation etc.),
Coercive measures (apprehension, pre-trial detention etc.),
Prosecution,
Judicial proceedings
Law-decree on the Execution of Punishments consists of both the obligations and
rights of the detainees and rules for executive authorities and their staff.
1

Copyright 2002 Andrea Dombrdy, published here by permission. Correspondence should be

addressed to author, Dombrdy Law Offices, 4032 Debrecen, 72. Miszth Street, Hungary.
35

As seen above, corrections as a form of punishment can be traced in

every part of the criminal law. After a comprehensive description of the
Hungarian corrections system I would like to deal with one of the most
interesting sections of corrections, the pre-trial detention. However, considering
the presumption of innocence, which is a principle of Hungarian criminal law,
pre-trial detention is obviously not a punishment. According to the recent legal
regulations it is implemented in prison, so pre-trial detention has become part of
the penitential law.
The Corrections System
Theoretical overview. There are three basically different views and practices
upon the legal regulation of penitential law:
1. The penitentiary law is part of the substantive criminal law i.e. the
specific regulations are collected in the Criminal Code like in
Switzerland.
2. Corrections is part of the procedural regulations, e.g. France.
3. Self-contained penitentiary regulations, e.g. Act on the Execution of
Punishments: Italy, Spain, Portugal.
Hungarian legislation follows the third practice with the exception that the
regulation is not implemented by an act, but a law-decree, which means a lower
level law source.
The legal regulation of corrections in Hungary is based on the theory named

the three pillars of the jurisdiction. According to this theory the criminal code
prescribes punishments as consequences of unlawful behavior, the court passes
a judgment and the state enforces it. So the first pillar is the legislation by
substantive criminal law, the second pillar is the criminal court by the
procedural law, and the third pillar is the enforcement authority by penitential
law.
Thus, the regulation of corrections is based on a lower level source. With
the application of the above mentioned theory Hungary understood the
importance of the self-contained regulation of the penitentiary.
Legislative Aims of Corrections in Hungary
Before the changes in the political system in 1990 the general aim of
correction was re-educating the criminals to become worthy members of the
communist society. Although the idea itself was not bad, like most of the
specific ideas of communism, it was not at all realistic.
The implementation of this legislation (21/1966) used means of coercion
widely in order to reach its aims, while even the basic human freedoms and
rights were omitted. This could be so because of the isolation of the iron curtain
that kept international control at bay.
Changes came even before the political system changed. These changes
were the changes of practical realism. The 11/1979 law-decree abandoned the
moralizing on re-education, but the main aim was still the formation of the
detainees personality.Until 1990 the death penalty was still in force in
Hungary. The changes of the political system brought about the realization of
human rights and freedoms that lead to the modification of the Constitution. The
36

changes touched legislation as well, that set up the Constitutional Court. The
Constitutional Court found the death penalty contrary to the basic human right
to life, as declared in the Constitution, so the death penalty has been reversed by
decree.
The effective Law-decree on the Execution of Punishments determines
the aim and the task of corrections according to the Criminal Code:
The punishment is a legal prejudice defined in the act for the
perpetration of an act of crime. The aim of a punishment is the
prevention, in the interest of the protection of society, of either the
perpetrator or any other person from committing an act of crime
(Section 37.).
On this basis the law-decree declares the aim of imprisonment as a
punishment, but takes special consideration of reintegration into society:
By the implementation of the legal prejudice defined in the act,
correction helps the convicted to reintegrate into the society and avoid
commitment of another crime.
So it can be proved that the aim of imprisonment is mainly individual
prevention, that keeps the convicted away from society for a while, and during
this period strives for reintegration. The imprisonment can be classified by the
duration and by the degree of strictness. The imprisonment may be life
imprisonment or an imprisonment lasting for a definite period. The shortest
duration of imprisonment lasting for a definite period of time is two months
while its longest duration is fifteen years. The cumulative or sum total of
punishment is twenty years.
The strictness of the imprisonment relates to the severity of the
committed crime. On this basis there are three different types of institutions for
the execution of punishments in the levels of high security prison, prison, or
detention center (Table II).

TABLE II

Life imprisonment shall be executed in a high security prison.

Imprisonment of the duration of a longer period shall also be executed in a
high security prison,
where it has been inflicted for
a crime against the state or against humanity
an act of terrorism
seizing an aircraft
cases of homicide, kidnapping, rape, violence against impudency, violent
sexual perversion against
nature, causing public danger, and robbery
military crimes also punishable with life imprisonment
imprisonment of the duration of two years or longer shall be executed in a
high security prison,
if the convict is a multiple recidivist.
The imprisonment shall be executed in a prison with the above mentioned
exceptions that shall
be executed in high security prison if
-

it has been inflicted for a felony

it has been inflicted for a misdemeanor, and convict is a recidivist.
37

The imprisonment for a misdemeanor shall be executed in a detention center

except for the case where the convict is a recidivist.
Correction Institutions in Hungary
In Hungary, as in the United States, the corrections institutions are
county jails and prisons. The difference between the two systems is that in
Hungary both of the institutions are parts of one common system, which is
operated by the state. The county jails are not simply local institutions but parts
of the national corrections system.
Police stations have lockups in every town of the country. Some of them
mainly in the small towns are situated in the building of the police station. In
all major cities there are separate lockup facilities for temporary detention under
the investigation. The county jails at the time of their construction were
correctional institutions, satisfying the demand that convicts serving shortterm misdemeanant sentences were imprisoned not far from their home.
These institutions are in smaller buildings so usually provide better
circumstances for the education of the prisoners in a smaller community.
Unfortunately, they have lost their correctional roles because of the demand for
more places for the pretrial detainees. With the increasing number of criminal
cases, the police lockups have become overcrowded. Therefore, the county jails
have become institutions more for the implementation of pretrial detention than
institutions for correction, although their regulation is under the penitentiary
law.
After the arrest the suspect is held in police lockup, but as the duration
of the investigation becomes more and more extended mainly because of the
insufficient capacity of the authorities the place is demanded for newcomers.
After a few months of custody the suspect is usually transported into the county
jail and becomes an inmate of a correctional institute, even before the formal
criminal charge is pleaded. It has the certain value that s/he becomes familiar
with the rules of correction, so if s/he is found guilty by the judge and the
sentence is imprisonment these rules are already known.
There is a county jail in each capital city of the counties. The inmates
stay here until the end of the first session of the court proceedings, i.e. the first
instance process. If the court finds the defendant guilty then s/he is very soon
transported to a prison.
As introduced in the previous part of the paper there are three degrees of
prisons ranked by their strictness. Although the severity of the circumstances in
these institutions vary according to the sentence, in most of the institutions the
execution of the different degrees of imprisonment are separated from each
other in the same premises.
The law prescribes that females shall be separated from males, juveniles
from adults, and pretrial detainees from convicts. There is also a legal
prescription that the convicts shall be separated from each other in order to
preserve the integrity of their privacy this is the theory. The practice
incorporated in the law allows, that if the amount of cells is insufficient, more
convicts may be placed in one. One thing should be known, all of the prisons
are two or three times overcrowded.
There are thirteen prisons in Hungary ten of them are for male prisoners,
one for female one for both, and one especially for juvenile detainees. Most of
the prisons are designated to execute high security and regular prison sentences
while the rest are for prison or detention center execution.
38

Tasks of Imprisonment
The aims of punishment have been introduced in this paper. In this
section I would like to describe the tasks custody, employment, formation of
personality of corrections through the introduction of the rules of the
institutions.
The chief officer of the institution, considering the general provisions of
the law, creates the individual rules of each prison.
In simple terms the difference between the three degrees of the severity
of the institutions could be summarized as follows:
- high security prison: the detainees life is determined in detail and
s/he is under the strictest, continuous control
- prison: the detainees life is determined but the control is less strict
- detention center: the detainees lives determined only in parts, they
arrange the time that is not spent with work.
The restrictions upon detainees lives listed above are
implemented in the freedom of movement inside the area of the
institution:
- high security prison: the detainee may only walk if escorted by a
warden
- prison: the detainee may walk without wardens escort only in a
designated area of the institution
- detention center: the detainee may walk without wardens escort
inside the entire institution
The common element in all three institutions is that the prisoners
may work and have payment for it. The difference between the
degrees is that in the more severe institutions there are more
restrictions on prisoners choosing how to dispose their money. There
are certain differences between the degrees in the possible locations
of the work areas:
- high security prison: the detainee may work outside the institution
only in exceptional occasions if complete separation is possible
- prison: the detainee may work outside the institution under
supervision of a warden
- detention center: the detainee may work outside the institution
without supervision of a warden
One task of correction is forming the personality and this is based on the
aim that the convict should be prepared for reintegration into society after
release.
This is the reason why, the employees of the correctional institutions are
divided into three groups: security staff, wardens, and education staff. The
security staff and the wardens help to fulfill the task of the custody. The latters
task is keeping in daily touch with the detainees and helping to preserve their
connections with the world outside.
The law supports the reintegration, as it is prescribed, that before release
the convict shall be moved into a special group for preparation of life in society.
This usually means the application of less severe rules as well.
The institution of the less strict rules of execution should be
mentioned here. The word institution does not refer to a special sort of prison
but the application of special rules in the execution of imprisonment.
These less strict rules of execution shall be used if - considering the
personal character, former life style, familiar circumstances, relationships to
other offenders, behavior during imprisonment, the committed crime, duration
39

of detention - the aim of the imprisonment could be fulfilled by the application

of them.
The greatest improvement in the application of these less strict rules is
that the detainee is allowed to travel by public vehicles without any kind of
escort and from time-to-time may leave the institution to visit the family, even
for a few days.

Pretrial Detention
As it has been seen the term correction can be traced in every part of
criminal law. It can be found in the criminal procedure as well, because the
enforcement of the pretrial detention is under the regulation of the respective
law-decree.
The Act on the Criminal Procedure rules the cases when pretrial
detention should be applied as follows:
The pretrial detention should be prescribed in case of suspicion of
crime that shall be punished with imprisonment if
a) the defendant fled away from the procedure or hid him or herself
from the scope of the authorities or might flee or move away because of
the severity of the crime suspected
b) in the case of being at large it is presumable that the defendant shall
fail or obstruct the procedure
c) the defendant committed another act of crime during the procedure
that shall be punished with imprisonment or presumable that in case of
being at large the defendant should commit another crime. (Section 92.)
The pretrial detention may only be prescribed with the decision of
the court. (Section 93.)
Restrictions against the defendant should only be used in accordance
with the tasks of the procedure, or if the rules of the institution where
the detainee is placed prescribe otherwise. The detainees rights in
the procedure may not be restricted, particularly the right to
defence. (Section 97.)
This is how it should be implemented. The answer for the question
where? is provided by the Law-decree on the Execution of Punishments.
The pretrial detention shall be executed in a correction institute. Until
the end of the investigation the detainee may be kept in a police lockup.
In practice the criminal procedure in Hungary often omits or breaches
some basic human rights that have been accepted for application in the law like the right to fair procedure, particularly the right to the procedure that ends
in a reasonable duration. Because of this the duration of the procedures are
usually much longer than allowed by the law. Obviously there is a clause for the
exceptions, so it can be considered as a lawful process.
As a result of the longer duration of the procedure - even if the law
prescribes extreme urgency if the suspect is in detention the duration of the
detention is prolonged. The police lockups are overcrowded so the defendants
have to spend most of their detention in the county jail.
40

Thus far, one thing is extremely important in this discussion. On one

hand there are legislative regulations about the rights of the defendant, but on
the other hand the most important is what the institutions can provide for them.
As it has been introduced punishment is a legal prejudice so being
imprisoned in a correction institute is a prejudice.
The general provisions of the Act on the Criminal Procedure consist of
the principles of the procedure with special respect to the rights of the defendant
i.e. the presumption of innocence, right to freedom and other civil rights, right
to defence, right to appeal, etc. The difference between theory and practice must
be considered.
The most important imperfection of the criminal procedure in Hungary
is that there is not a bail system at all. This leads to the situation that almost
70% of the pretrial detainees would have been allowed at large. Obviously the
release on bail or on own recognizance cannot provide a full guarantee against
the failed procedures. With the right application of the special rules for the
prescription of the pretrial detention together with the principles of the law
contained by the general provisions of the Act on the Criminal Procedure in the
decisions of the Court, at least in half of the cases the defendant should remain
at large. As a side-effect the capacity of the county jails could be used for the
proper correction of the convicts.
Another important impact should be mentioned here: As a result of the
procedures some of the defendants are excused from the suspicions brought up
against them. In such cases they can claim recovery from the state because of
the deprivation of their freedom and other damages caused by the process. This
is regulated by the Act on Criminal Procedure. With the more careful treatment
of the right to freedom that is also mentioned by the same act, apologizing
would less frequently be the task of the procedure.
One other thought upon this matter: How much less fair would be the
procedures if the defendant is not at large and the state that holds the whole
procedure in its hand has not kept in mind that if the suspect is not guilty
recovery must be paid?
This is a paradox. It is also a paradox that with the consideration of the
presumption of innocence the defendant is placed in a correction institution
where s/he must follow the rules, which are the same as those that are applied to
the sentenced convicts, and cause the mentioned prejudice as punishment.
Let us take a look at these rules:
The detainee shall
- keep the rules of the institution, act upon orders
- occasionally contribute to the cleaning of the institution without
payment
- submit him or herself to medical examinations and treatment
- pay the costs of his or her keep
- recover any damage caused by him or herself
The detainee may walk inside the institution only escorted by a warden.
And now remember what is in the Act on Criminal Procedure:
Restrictions against the defendant should only be used in accordance to the
tasks of the procedure. And the tasks are as we saw: do not let him or her flee or
move away from the procedure, prevent him or her from hiding or destroying
the known or yet unknown evidence or influencing the witnesses, and prevent
the commitment of further acts of crime.
However there are some rights that should be allowed to the detainee:
41

The detainee may

- practice his or her rights in the procedure
- wear own clothes
- spend his or her deposited money for own need
- keep correspondence with his or her relatives and with others if
allowed by the prosecutor
- Once per month receive visitors and package of goods from the family
- use the educational, cultural, and sports facilities of the institution
- participate in supply and medical treatment, receive medications free of
charge
- apply for paid employment inside the institution
- present complaint or instance
- practice his or her religion
- have the right of recovery for the damages caused to him or her
- have rest and paid holiday after his or her regular employment
If we put all this together the balance still shows that being imprisoned in a
correction institution is a punishment rather than fair treatment for one who is
presumed to be innocent.
Despite the stronger restrictions detainees find the correctional
institutions preferable to jails and they look forward to being transferred there.
The explanation is that correctional institutions, although crowded, have better
conditions for the confined and while the regulations of the correctional services
guarantee fewer rights these rights are actually respected.
So one can imagine the situations in the police lockups, considering that
the pretrial detainees are usually looking forward to being transported to the
correctional institutions.
The overcrowded police lockups have some certain impact on the whole
corrections system. The county jails should be the perfect small institutions of
the corrections system, which could fulfill the aims and tasks of imprisonment.
Remember:
The aim of a punishment is the prevention in the interest of the
protection of society of either the perpetrator or any other person
from committing an act of crime.
in conjunction with:
by the implementation of the legal prejudice defined in the act
correction helps the convicted to reintegrate into society and avoid
commitment of another crime.
Conclusions
Prisons should be designated to hold convicted persons and to provide
some kind of meaningful life for them. Being a criminal means to live an outlaw life. Out-law means the lack of the ability of being integrated into society
i.e. the ability to accept and follow its rules prescribed by the law. The
imprisonment in a smaller institution, where the relations of the community are
more transparent and are more apt to be followed, can help the inmates to obtain
the ability to accept rules and to integrate into a community or even into society.
The use of large prisons, where detainees could not find their right
position, is only for their incapacitation as special prevention of the society.
These institutions are usually not more than places for custody and any
42

rehabilitative value loses to the recognition that being there should be something
awful. So, if one hates to be there, next time they will avoid committing a
crime.
The clear definition of the aims and tasks of corrections are declared by
the legislation in Hungarian law. As we saw in several instances mentioned in
this paper the problems are not with the legislation but with the implementation.
However nowadays our law is conformed to the international standards
implemented in the treaties that have been accepted by Hungary and represented
in the Hungarian law. It can be concluded that we have a fairly good theory but
there is a lot to do for the improvement of the practice.

43

THE IMPLICATIONS OF THE HUMAN RIGHTS ACT FOR

YOUNG SUSPECTS AND REMAND PRISONERS IN ENGLAND
AND WALES
Fiona Brookman and Harriet Pierpoint1
Introduction

he Human Rights Act 1998 came into force in the UK on 2nd October 2000.
Still in its infancy, this Act has been the subject of much speculation
regarding the extent and nature of its use. This paper will consider some of
the situations where it could be used by young suspects held in police custody and
pre-trial remand prisoners. Both groups are innocent in the eyes of law in that
neither have been found guilty of a crime in a court of law at this stage. Drawing
upon both primary and secondary data2, this paper will explore potential breaches of
procedural articles 3, 5 and 6 by the criminal justice system for these two groups.
The paper will conclude by suggesting some reforms for policy and practice to avoid
such contraventions.
Setting the Scene
The Human Rights Act . The Human Rights Act 1998 (HRA) came into full operation
in England & Wales on 2nd October 2000. It incorporates into UK law the European
Convention on Human Rights (ECHR) drafted in 1949 which was originally designed
to protect the individual from abuse by the power of the state and to ensure that the
atrocities committed during the second world war should never again be possible
(Brahams, 2000).
Although the UK was among the first countries to ratify the
convention in 1951, and despite the fact that the ECHR was drafted mainly by British
lawyers, it was not until 1966 that the government permitted applications from the
UK to the Strasbourg Court and another 34 years for it to be incorporated into
domestic law. Hence, from its initial inception, it has taken 50 years for full
absorption of the ECHR into the UKs legal framework.
The UK was amongst the last of the European Union members states to adopt the
Convention as part of domestic law (Cooke and Baring, 2000). According to
Pickering (2000), reasons for the long-term delay lie, in part, in the British
constitutional tradition the negative freedom from government interference rather
than a positive culture of human rights founded in a written constitution. Moreover,
in the U.K. it was long believed that the rights and freedoms guaranteed by the
Convention could be delivered under our common law traditions. However, it
became embarrassingly clear that we have been found wanting by the European
Court in Strasbourg far more frequently than would have been thought conceivable to
1

Copyright 2002 Fiona Brookman and Harriet Pierpoint, published here by permission.
Correspondence should be addressed to authors, Department Criminology, University of Glamorgan,
Pontypridd, South Wales, CF37 1DL, UK.
2
Data pertaining to remand prisoners relates to earlier research by Brookman et al. (2001), and that
relating to young suspects is drawn from ongoing research by Pierpoint.

45

those in the Foreign Office who helped formulate the proposals in the first place,
some fifty years ago. (Smith, 1999:251-2)
Geographical remit of the HRA. The United Kingdom of Great Britain and Northern
Ireland consists of four countries: England, Wales, Scotland, and Northern Ireland.
They form three distinct jurisdictions each having its own court system and legal
profession: (1) England and Wales, (2) Scotland and (3) Northern Ireland. The other
four fifths of Ireland constitutes the Republic of Ireland which is independent.
Legislation passed in Westminster can be assumed to apply to the whole of
the United Kingdom, unless otherwise made explicit within the Act. Then it can apply
to one or a combination of its component countries. For example, some Acts apply
primarily or exclusively to Northern Ireland, such as the Prevention of Terrorism
(Temporary Provisions) Act 1989. Legislation of the recently devolved National
Assembly for Wales, Northern Ireland Assembly (suspended at the time of writing)
and Scottish Parliament applies to their respective jurisdictions.
Under the terms of the devolution legislation, the devolved institutions have
no power to do anything which is incompatible with the Convention rights. For
example, under terms of the Scotland Act 1998, the Scottish Executive and the
Scottish Parliament have, since their creation, been obliged to comply with the
requirements of the Convention in exercising their powers. The Convention was
incorporated into UK law with the passing of the HRA. When the HRA came into
force in the UK on 2nd October, the requirement to comply with the Convention was
extended to all public authorities in Scotland, and throughout the rest of the UK
(Scottish Office, 1999; Addison and Taylor, 1999).
Application of the HRA. Prior to the implementation of the HRA, the individual had
the right to petition the European Court of Justice in respect of alleged breaches of the
Convention.3 The Convention did not, however, have direct effect within national
boundaries of the UK (or, at least not directly). The HRA gives further effect to
rights guaranteed. Specifically, now all Parliaments in the UK will have to consider
the human rights aspects of every Bill. Regarding existing legislation, section 4
provides that, where it is not possible to interpret legislation in a way that is
compatible with the Convention rights, a higher court should make a declaration of
incompatibility for primary legislation. This triggers a new power that allows a
Minister to make a remedial order to amend the legislation to bring it into line with
the Convention rights. For the first time, individuals who consider that their
Convention rights have been infringed by public authorities (including the Police
Service, Prison Service and the courts the institutions in which we are interested in
this paper), will be able to bring proceedings on domestic courts (s.6). In other words,
breaches of their obligations may give rise to challenges and compensation claims by
victims (Brahams, 2000). Moreover, domestic judges will have to take account of
the Convention (s.7) and judgements of the European Court of Human Rights, and
opinions of the Commission, so far as they are relevant (s.2) in deciding cases. This
paper will concentrate on the implications of the HRA in our jurisdiction, England
and Wales.

The individual can still petition the European Court of Justice, but it will want to know that the
individual has exhausted all domestic remedies first, including the legal routes opened up by the HRA.

46

The Human Rights Act (1998) and some potential challenges in relation to the
Police and Prison Service
Table 1: Summary of rights guaranteed under European Convention on Human Rights (to which UK is
party)

Article

Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13

Article 14
First Protocol,
Article 1
First Protocol,
Article 2
Sixth Protocol,
Article 1

Right

Right to life
Prohibition of torture inhuman &/or
degrading treatment or punishment
Prohibition of slavery & forced labour
Right to liberty & security of person
Right to fair trial
Prohibition of retrospective application of
the criminal law
Right to respect for private & family life
Freedom of thought, conscience & religion
Freedom of expression
Freedom of assembly & association
Right to marry
Right to an effective remedy in domestic law for
arguable violations of the Convention
Prohibition of discrimination
Right to education
Right to free elections
Abolition of death penalty, save in respect of acts
in time or in imminent threat of war (Sixth
Protocol, Article 2)

Table 1 above lists the rights to which the UK is party under the HRA. There
are various ways in which the Police and Prison Service may be vulnerable to
challenge under human rights legislation. The recent spate of prison suicides by those
on remand4 and violence within prisons could be said to contravene Article 2 which
guarantees the right to life. Overcrowding, the lack of integral sanitation and
inadequate regimes continue to plague many prisons across the country which may
clash with Article 3 which debars torture or inhuman or degrading treatment or
punishment (see Levenson, 2000a and Council of Europe, 2000). Similarly, police
interview techniques may be challenged under the Convention (Mcllwhan, 2000),
under Article 3. The Commission has held that questioning should take account of
age and susceptibility (Kilkelly, 2000). Failure of the police to take steps to account
for age and vulnerability in their questioning, would undoubtedly be subject to
challenge in the domestic courts (Kilkelly, 2000:468).5
Coercive techniques of police officers and maltreatment in police custody,
which contravene Article 3, call Article 6 (the right to a fair trial) into play.
Evidence obtained by such treatment should always be excluded for the proceedings
4

The proportion of remand prisoners who took their own life rose significantly last year from 33% in
1999 to 46% in 2000 (see Inquest, 2001).
5
The Convention does not contain any specific childrens rights (Kilkelly, 2000:466). However, its
Articles apply to everyone (Article 1) and discrimination in enjoyment of Convention rights on any
grounds, including the unenumerated ground of age, is forbidden (Article 14).

47

to be fair (Austria v Italy (1963) 6 Yearbook 740 as cited by Strange, 2001:203).

Article 6 may also be breached by the absence of an uncurtailed right to silence
(Ashworth, 1998).
Article 5 which asserts the right to liberty and security and Article 6 which
guarantees the right to a fair trial, whilst most significant at the court decision-making
stage, have been identified as vulnerable to challenge where prison discipline is
concerned.
In particular, hearings before prison governors and subsequent
punishments may not be regarded as independent. Article 5 asserts qualified right in
that it provides for certain exemptions where liberty can be restricted. However,
these are limited circumstances which may not extend to positive arrest policies in
relation to young people (Hill, 2000; Gillespie, 2000). The same Article also requires
young suspects to be informed of offence for which he or she was arrested, which the
Police sometimes fail to do (Evans, 1993).
Finally, Article 8 which protects the right to privacy and family life may be
vulnerable to challenge where restrictions on or surveillance of telephone calls by
prisoners occur or restrictions of visits (see Levenson, 2000b). Similarly, it is
doubtful whether the retention of personal data, such as DNA, by the Police for future
offences is compliant with Article 8 (Khan and Ryder, 2000).
Introducing the Groups
Having provided a brief overview of the HRA and its potential application, we
now move on to consider the two specific populations; (i) young suspects detained in
police custody, and (ii) defendants remanded into custody pending trial. Individuals
who are arrested and detained in custody (police or prison) are deprived of their
liberty. During their detention they become subject to a degree of regimentation and
order which makes conflict, both real and perceived, with the principles set out in the
ECHR a very real possibility and places the criminal justice system in particular the
Police Service, Prison Service and the courts at the cutting edge of human rights
issues. We will now introduce these groups and explain how we gathered data about
their experiences.
The first, and perhaps most fundamental, point to emphasise at this stage,
however, is what these groups share. The foremost theoretical safeguard granted to
suspects under the criminal justice system in England and Wales (and under the
Convention) is the presumption of innocence (Sanders and Young, 2000). In our
adversarial system, the prosecution must prove guilt beyond reasonable doubt. Until
such a time, suspects are considered to be innocent. Both young suspects held in
police custody and pre-trial remand prisoners are innocent in the eyes of law, in that
neither have been found guilty of a crime in a court of law at this stage.
Young Suspects Young suspects are suspects aged between 10 and 17. The age of
criminal responsibility is 10 in England and Wales (since the abolition of doli incapax
by Crime and Disorder Act s.34). For the purposes of the Codes of Practice, which
govern police detention, a juvenile is someone who appears not to have attained the
age of 17 (Code C para 1.5).6 Much of the domestic law regarding the detention and
questioning of suspects in police custody is codified within the Police and Criminal
Evidence Act 1984 (henceforth PACE) and its accompanying Codes of Practice.
6

It is interesting to note in passing that the Police are only obliged to treat a suspect as a juvenile if he
appears to be under the age of 17 and if there is no clear evidence to the contrary. Therefore, the Police
are entitled to treat a suspect, who is in fact under 17, as an adult if the suspect looks mature enough,
lies about his age and there is no evidence to the contrary. However, the Police must alter their
treatment of the suspect accordingly when the truth is discovered.

48

Approximately 33 per cent of the approximately 1.5 million people arrested

annually are released without charge (Brown, 1997). An estimate is not available for
young people . However, in Bucke and Browns (1997) study, in 24 per cent of
cases, no further action was taken against young suspects (n=2, 135). Evans and
Ferguson (1991), as cited by Evans (1993), found that some arresting officers
consider that being arrested and detained in the police station may act as a deterrent.
Such officers described it as a frightener and it acts as a warning. This can be
explained, at least in part, by Choonghs (1997) social disciplinary model, which
proposes that the main concerns of the process, specifically of the police, are to
maintain authority, to extract deference, to reproduce social control and to inflict
punishment.
It is widely recognised that young suspects are more vulnerable than adult
suspects (Sanders and Young, 1994). They are prone to providing information which
may be unreliable, misleading or self-incriminatory (Code C: Note 11B).
Experiences in custody and exchanges in police interrogation rooms often determine
the outcome of cases at trial (McConville and Baldwin, 1982:174). However, at
least at trial the issue of any unreliability can be raised (albeit not certain that it will
have an effect). Under PACE s.78, the court may (but will not necessarily) exclude
evidence if there has been a significant and substantial breach of the rules. In light of
the new reprimand and final warning scheme, many cases do not reach trial to
possibly assess the reliability of young suspects confessions. Many young people
will now be subject to the new reprimand and final warning scheme. Diverting young
people away from court may be considered to be a sign of a humane and progressive
youth justice system, but it also represents a continuance in the movement away from
judicial towards administrative justice (Pratt, 1986). The decision about whether
to impose a reprimand and final warning, like its predecessor the caution, is taken by
the police behind closed doors, without direct public accountability or scrutiny.
Therefore, it is particularly important that the rights of young suspects are
safeguarded. One way to do this is to scrutinise the regime, for and practice of
detention of young people in police custody, for its compliance with Convention.
The introduction of PACE and its Codes of Practice has improved the position
of suspects. Some have even argued that the position of suspects is now so strong
that it unduly hampers the police in crime investigation (see Sanders and Young,
2000). However, other camps argue that a more substantial framework is needed to
avoid miscarriages of justice and police malpractice (Woffinden, 1997; Woffinden
and Webster, 1998 as cited by Sanders and Young, 2000). The most recent example
of possible police malpractice which has come to light are the three alleged police
assaults against suspects caught on camcorder (Wainwright, 2001; GMTV, 2001).
The fact remains that suspects rights are dependent on the police for their exercise
and, evidently, the police do not always exercise their duties as they should.
Therefore, it is appropriate that the regime for and practice concerning the detention
of young people in police custody should be scrutinised in terms of its compliance
with the Convention.
Remand Prisoners Imprisonment in England & Wales. Before discussing remand
prisoners specifically, it is important to briefly consider the prison population of
England and Wales in order to place their experiences in context. The average prison
population in 1999 was 64,770, a reduction of 1% on the average for 1998 (which
was the largest ever recorded). This figure translates to a rate of 125 per 100,000
population and was the second highest in western Europe. Only Portugal had a
higher rate (131). Russia and the US have the highest rates in the world, some six
times higher than those in western Europe (Cullen and Minchin, 2000). There would
49

seem to be little doubt from these figures, that imprisonment as a form of punishment
is over-used in England & Wales.
Remand Prisoners in England & Wales. Remand prisoners can be defined as those
who are not sentenced to imprisonment but are held in custody pending determination
of guilt or innocence or determination of sentence after conviction (Casale &
Plotnikoff, 1990). They are an important group as far as human rights are concerned.
To begin with they comprise a significant proportion of the prison population of
England & Wales (19% in 1999). Yet the prison service is essentially designed to
meet the needs of the sentenced rather than the remand prisoner (Casale & Plotnikoff,
1990). Hence, this particularly vulnerable group experience some of the poorest
regimes in the prison system including prolonged periods of lock-up, little or no
work or education opportunities, and generally poor regimes (Prison Reform Trust,
1997).
Aside from these issues, some serious questions can be raised about the levels
of pre-trial remand into custody based on final outcomes at court. Less than half of
those remanded into custody pending trial subsequently receive a custodial sentence
(47% of males in 1999 and 35% of females) (Prison Statistics England & Wales,
1999). Almost a quarter of those who are remanded into custody are found not guilty.
Specifically, 22% of males and 21% of females remanded into custody were acquitted
or proceedings terminated early in 1999 (Prison Statistics England & Wales, 1999).
The remaining 30 percent (approximately) are dealt with by penalties other than
imprisonment. Finally, of course, some percentage of those who are found guilty and
imprisoned may ultimately be found to have been victims of a miscarriage of justice.
There is currently no automatic procedure for either group to receive compensation.7
So despite the provisions under the HRA that Anyone who has been the victim of
arrest or detention in contravention of the provisions of Article 5 shall have an
enforceable right to compensation (Law Commission, 2001:9) this does not extend
or apply to those remanded into custody and acquitted or those found guilty in a court
of law whose conviction is ultimately overturned.
Figures of the extent of miscarriages of justice are difficult to obtain. David
Wilson (1999) who considered estimates from the organisation JUSTICE8 and the
Prison Officers Association, suggests that around 2% of the prison population (or
1,300 people) mostly concentrated in long-term prisons, are innocent of the crime for
which they have been convicted (Wilson, 1999). Other estimates are far larger at
around 5% of the prison population or 4,000 prisoners (Miscarriage of Justice
Organisation M.O.JO Personal communication). Wilson (1999) notes that the 2%
estimate is likely to be a conservative one given the many disincentives for prisoners,
especially long-term ones, to protest their innocence. Issues such as parole, transfer,
7

There is no general entitlement to recompense for wrongful conviction or charge but all applications for
compensation are considered first under the provisions of section 33 of the Criminal Justice Act 1988 and then, if
necessary, under the ex-gratia arrangements announced by the then Home Secretary in his statement to the House
of Commons on 29 November 1985. Statutory provisions for compensation apply in certain specified
circumstances, where a conviction has been reversed, while ex-gratia arrangements provide for the payment of
compensation, in exceptional circumstances, to individuals who have spent a period in custody, whether or not
they were convicted of an offence. There have been several arguments for the automatic compensation of those
wrongly imprisoned. For example, the Prison Reform Trust (1997) have argued that acquitted remand prisoners
should be entitled to apply for compensation, not only for lost earnings, employment and housing, but also in
recognition of the stress suffered during their time in prison.

JUSTICE is an all party, legal human rights organisation which aims to improve British justice
through law and reform and policy work, publications and casework. It is the British section of the
International Commission for Jurists.

50

incentives and categorization can all depend on the willingness of the prisoner to
acknowledge his or her guilt (Wilson, 1999).
Some researchers have argued that remanding individuals serves to provide
them with a taste of imprisonment (Morgan, 2001) yet this is not purported to be
part of the rationale for remands into custody. Rather, there are five specific grounds
for justifying the removal of a persons liberty before trial: fear of absconding;
interference with the course of justice; commission of further serious offences; the
preservation of public order; and the protection of the defendant (Strange, 2001).
Moreover, detention should only occur if there is a 'real risk' that the feared event will
occur if the defendant is released on bail (Law Commission, 2001:22). How real
risk is interpreted may of course vary between magistrates and courts. Critics have
observed that magistrates (like custody officers in when deciding upon police bail)
have to come to a decision on the basis of probabilities and not certainties
(Hailsham, quoted in Zander, 1988:24). This gives scope for the exercise of
discretion and judgement, leading to disparity between different courts (Hucklesby,
1996; Paterson & Whitaker, 1995).
The Data
Young Suspects Regarding young suspects, we will draw on a combination of
secondary and primary data. In terms of secondary data, we will draw on studies
Evans (1993), Dixon (1990), Brown et al (1992), Sanders et al (1989) and Philips and
Brown (1998). In these studies, data were collected using a range of methods,
including observation, interviews of detained persons and questionnaires
administered to arresting officers.
In terms of primary data, we will draw on data collected by Harriet Pierpoint
for her doctoral research concerning the practice of volunteers acting as appropriate
adults for young suspects. The appropriate adult is intended to safeguard the
interests of the young suspect whilst they are detained or being questioned by police
officers (Crime and Disorder Act 1998 s.38(4)(a)).9 We will discuss the appropriate
adult in more detail below. The doctoral research employed two strategies. The first
was a 3-year case study of a local volunteer appropriate adult service, for which data
was collected by a number of methods. In this paper, we will draw on data collected
from a survey of volunteer appropriate adult call outs. At the end of each call out the
volunteers were requested to complete a questionnaire. Volunteers completed 155
questionnaires in almost one year.10
The case study was triangulated with a national postal survey of appropriate
adult provision for young people by YOTs in England and Wales to explore the
generalisability of the case study results (Hammersley, 1992). It is the statutory duty
of the Youth Offending Team (YOT) to co-ordinate the provision of appropriate
adults (CDA s. 39(7)(a)). A questionnaire was sent to all 154 YOTs in England and
9

The presence of an appropriate adult is also required for suspects who are mentally disordered or
mentally handicapped (Code C para 11.14). An exclusive focus on appropriate adults for young
persons is justified because local authorities (in co-operation with other local agencies) only have a
statutory duty to provide appropriate adults for young suspects (CDA s. 38(4)(a)). Moreover, it has
been suggested that future Codes should distinguish between the needs and requirements of young and
mentally disordered adult detainees (Robertson et al., 1996). The needs of young people are likely to
be different to those of people with learning difficulties.

10

This does not quite represent the total number of volunteer appropriate adult call-outs during that period. To
assess the representativeness of the achieved sample and identify the nature and extent of any bias (Moser and
Kalton, 1971), the volunteer appropriate adult co-ordinator was requested to record instances where a
questionnaire was not completed on a non-response record sheet. Based on this information, the response rate for
this survey was 85.2 per cent. In terms of the adequacy for analysis and reporting, this response rate was
considered to be excellent (Babbie (1998: 262) as cited by Dantzker and Hunter (2000:155) ).

51

Wales. The response rate was 77.9 per cent, which was considered to be excellent.
(Babbie (1998: 262) as cited by Dantzker and Hunter (2000:155) ). This paper will
also draw on data collected in this national survey of YOTs.
Whilst the surveys were designed to collect data regarding the practice and coordination of volunteer appropriate adults respectively, they can give us some insight
into the experiences of young people in police custody.
Remand Prisoners Here we will explore the possible implications of the Human
Rights Act for defendants awaiting trial and consider the extent to which the
legislation will address problems they are currently facing in accessing justice. In so
doing we will draw upon the findings of a research project conducted by Fiona
Brookman (with 2 colleagues from Cardiff University) in 1999 funded by the
Nuffield Foundation. This research aimed to uncover the nature and extent of any
disadvantage suffered by the significant and growing group of remand prisoners in
terms of preparing for trial and receiving fair and impartial treatment within the
courtroom. To these ends a total of 45 interviews were conducted with four different
groups: (1) eighteen male remand prisoners; (2) eight men residing in a bail hostel;
(3) ten Defence Lawyers; and five Legal Executives; and a small number of other
criminal justice professionals (3 prison officers and 1 prison-probation officer). There
were, of course, limitations with the sample acquired for this small-scale study. For
example, we did not interview any females and only very small numbers of ethnic
minorities.
POTENTIAL INFRINGEMENTS OF HUMAN RIGHTS OF YOUNG
SUSPECTS AND REMAND PRISONERS
The findings we present below allow us to explore the very real ways in which
challenges to human rights could be brought under the HRA 1998 and, therefore,
reinforce what several commentators have been saying about the potential for such
occurrences. This is particularly important in a mixed climate of opinion regarding
the introduction of the HRA whereby parts of the criminal justice system such as
the Prison Service - have remained defiantly defensive, arguing that they are likely
to be compliant with the HRA as their policies have been shaped by the convention
for some time, including rulings from Strasbourg (Levenson, 2000). Similarly, one
camp in the Police Service believes that the HRA will make no difference because
they have always been bound by the ECHR (Gillespie, 2000:29).
The purpose of this paper is to highlight situations where potential breaches of
Convention articles might occur by the criminal justice system for these two groups.
In light of the undeveloped ECHR case law, regarding Convention rights, young
people, and remand prisoners11, it is not possible to draw conclusions with absolute
certainty. However, as Kilkelly recognises in relation to young people, given the lack
of precedent, this is an area ripe for challenge under the Human Rights Act.
(2000:467).
It is considered that procedural articles 5 and 6 are particularly significant for
suspects and remand prisoners and in terms of key issues on which we wish to focus:
(1) delays in the criminal justice system and (2) access to legal advice.
Article 5(3) provides that:

11

A search of the Case Law archive of the European Court of Human Rights web site reveals just one
case concerning a remand prisoner brought which was not, incidentally, upheld.

52

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of

this article shall be brought promptly before a judge or other officer authorised by law
to be brought before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial
Article 6(1) also adds that everyone is entitled to a fair and public hearing within a
reasonable time.
Article 6(3)(c) grants the right to consult a lawyer when a person is charged with a
criminal offence. It should be noted that the rights of the Convention are interpreted
broadly. For example, regarding the right to a fair trial under Article 6 of the
Convention, the European Court of Justice in Strasbourg has been concerned with
whether proceedings, as a whole, are fair (Edwards v UK (1992) Series A, No. 247-B;
15 EHRR 417). Moreover, in Magee v United Kingdom and Averill v United
Kingdom (The Times, June 20, 2000), the ECHR held in effect that the accuseds
trial begins almost at the moment of his/her arrest, and that the Art 6 protection
come into play virtually contemporaneously with the accuseds committal into
custody. (Loveland, 2000:1220).
1. Delays In The Criminal Justice Process
(1a) Young Suspects
Legislation. The regime established by PACE and the Codes of Practice is thought to
be, in general, one that complies with the Convention (Cheney et al, 1999). The
detention times are set out in sections 41 to 46 of PACE. Other than serious
arrestable offences, the upper limit that suspects can normally be held without charge
is 24 hours (PACE s. 41). These times are thought to comply with the Convention,
although the ECHR has not specified any time limits (Parsons, 2001). However, in
relation to Article 3, the ECHR has already held that the level, at which maltreatment
becomes unacceptable, is relative to the person in receipt of that treatment. It
depends on factors such as the mental and physical effects on the suspect and the
characteristics, such as health, age, and sex, of the person (Ireland v UK A 25 (1978)
cited by Cheney et al (1999:57); Starmer (2001) ). In this sense, the effects of
detention may felt more acutely by a young person than by an adult.
Regarding the conditions in which young people are detained, Code C
prohibits placing juveniles in cells unless no other secure accommodation is available
or it is impractical to maintain supervision (para 8.8). However, in the case study,
young suspects were systematically held in normal police cells with J marked on the
doors. This is consistent with Dixons (1990) finding that the force studied complied
by designating specific cells as 'juvenile detention room, which did not differ from
ordinary cells. As recognised by Evans (1993:25): Whether juveniles are detained in
a special juvenile detention room or in normal cells depends largely on the facilities
available at the station or whether they are younger or older in age range. Provisions
for conditions of detention are thought to normally conform to the Convention
(Cheney, et al 2000:57). However, following the Scotland Act 1998, calls have been
made in Scotland for a review of the detention of children in police cells (Mcllwhan,
2000).
53

Practice. Being detained, particularly, for a long period is undoubtedly stressful.

Studies of confinement have found that subjects soon become fatigued, disorientated,
anxious, and depressed (Sells, 173 as cited by Choongh, 1997). Between 1 April
1999 and 31 March 2000, there were 7 cases of suicide12, which represents an
increase from previous years (Carter et al, 2000). There may have been more given
that, at the time of publication, verdicts had been given for only half of the deaths of
people in police custody or otherwise in the hands of the police.
Delays in detention in police cells are considered by some to influence the
reliability of information given by young people to the police. Indeed, Dixon (1990)
suggests that the delay experienced by most young people waiting for the arrival of
the appropriate adult may encourage the young person to say what he or she thinks
the police want to hear in order that he or she may leave the police station more
promptly. This could lead to false confessions.13 Therefore, whether or not current
detention times and conditions would be considered as compliant with the
Convention, there is nevertheless a strong case for dealing with suspects, particularly
young ones, expediently.
In practice, a recent survey found that young people were detained on average
for five hours or more than seven hours, depending on whether they arrived at the
police station with their appropriate adult or whether one had to be summoned
(Philips and Brown, 1998).14 The latter is greater than the average for adults (6 hours
40 minutes). It is estimated from these findings that the subjects in Philips and
Browns (1998) survey waited at least 2 hours for the arrival of the appropriate adult.
The appropriate adult is intended to safeguard the interests of the young
suspect whilst they are detained or being questioned by police officers (PACE Code
C; CDA s.38(4)(a)). In the case of a young suspect, the role of the appropriate adult
may be performed by:
1. a parent or guardian (or, if the young person is in care, the care authority or
voluntary organisation. The term in care is used in the Code to cover all
cases in which a young person is looked after by a local authority under the
terms of the Children Act 1989);
2. a social worker;
3. failing either of the above, another responsible adult aged 18 or over who is
not a police officer or employed by the police (Code C para 1.7(a); CDA s.
65(7)).
Following criticisms of the practice of parents and social workers (for
example, Evans, 1993) and of the cost of using social workers as appropriate adults, it
was recommended that volunteers should be deployed (Home Office 1995, 1998;
Audit Commission, 1996, 1998). Particularly significant in this discussion is that it
was also considered that the availability of appropriate adults would be enhanced by
the development of local volunteer appropriate adult services (Home Office, 1995).

12

None of these suicides were committed by juvenile, but there have been suicides by juveniles in
police custody in the past (Wynn Davies, 1997).
13
However, Phillip and Brown (1998:73) found no evidence to support Dixons (1990) claim.
14
As might be expected, detention times also differ according to the nature of offence (Irving and
McKenzie, 1989) and outcome (Irving and McKenzie, 1989; Brown, 1989 in relation to adult
suspects). Delays may also occur in awaiting legal represenatives (Dixon, 1990), although this is
unlikely to be the main cause for the increase in detention times for young suspects given the
majority do not request legal advice (Brown, 1997).

54

According to the national survey of YOTS, 37.5 percent of YOTs use

volunteers (n=120, data missing for 30 cases).15 The issue of delay was one of the
issues investigated in the case study of a volunteer appropriate adult service. On
arrival at the police station, the custody officer has to start a custody record and must,
as soon as it is practicable, inform the appropriate adult of the ground for detention,
the juveniles whereabouts and ask the adult to come to the police station to see the
juvenile (Code C, para 3.9).
In 56.4 per cent of cases, the volunteers were contacted within two hours of
the young person being arrested/asked to attend (n=155, data missing in 13 cases). In
the remaining 43.7 per cent of cases volunteers were contacted in excess of two hours
of the young suspect being arrested. In 74.6 of these cases, the volunteers reported
that they ascertained the reason for the delay (n=79, data missing for 4 cases). Most
often, volunteers obtained the information from the custody record or officer (46.6
per cent of responses) (n=55, data missing for 13 cases).
Table 2: Reasons for the delay in contacting volunteers (Multiple response)
Reason

Count

Police waiting on evidence

Young person arrested at night
Young person ill/unfit for interview
Unavailability of relevant police officers
Appropriate adult duty start time
Previously arranged appropriate adult inappropriate/failed to attend
Other reason
Total responses

11
11
8
7
4
3
14
59

% of
responses
18.6
18.6
13.6
11.9
6.8
5.1
23.7
98.3

% of
cases
21.6
21.6
15.7
7.8
5.9
26.4
113.7

Notes:
1.

N=55. Data missing for 13 cases

2.

Percentages do not always sum to 100 due to rounding

_____________________________________________

The above shows the reasons which were given for the delay. Volunteers
noted one or two reasons. The most common responses were that the police were
awaiting evidence or that the young person was arrested at night (21.6 per cent of
responses each) (n=55, data missing for 13 cases).
Regarding the arrest of young people at night, young people would not
normally be interviewed during the night. In any period of 24 hours, a detained
juvenile must be allowed a continuous period of a least 8 hours for rest, free from
questioning travel or interruption (Code C para 12.2). In the case studied, volunteer
appropriate adult service commenced at 10:00. In a national survey, it was found that
9.9 per cent of YOTs provided volunteer appropriate adult services on a 24 hour basis
(n=45, data were missing in 5 cases). This is not necessarily required given young
15

An additional 20 YOT managers reported, in attached correspondence, or noted on the

questionnaire that a volunteer appropriate adult service was currently under development or that
volunteers were currently being recruited. Other YOTs may also have had such plans, even though
they did not report it. It was not possible to ascertain the precise number of YOTs, which planned to
use volunteer appropriate adults in the future, given that no questionnaire item was included on this
topic. In fact, the author discarded a question on this topic after the pilot study. This question was
abandoned to render the questionnaire shorter and, hence, to attempt to improve the response rate.
(Fink and Kosecoff, 1998).

55

people are unlikely to be interviewed at night, but they could be interviewed earlier
than 10:00.
Once contacted, volunteers took between no time and four and half hours to
attend (n=155, data missing in 33 cases). In the latter cases, no time was taken
because they were already in attendance at the police station having, for example,
attended as an appropriate adult for another young person.
However, when contacted, volunteers were either asked to attend as soon as
possible (72.3 per cent) or at a certain time (25.7 per cent) (n=155, data missing for 3
cases). In determining the speed in which volunteers were able to attend, it is more
useful to consider the cases in which they were asked to attend as soon as possible
exclusively.
If asked to attend as soon as possible, the volunteer arrived in between no time
and 3 hours and 15 minutes. On average, they arrived in 37 minutes (n=92, data
missing for 10 cases). This is less than the 2 hours estimated from Philips and
Browns (1998) findings.16 As shown in Table 3 below, nearly all volunteers, who
were requested to attend as soon as possible attended within one hour (96.7 per cent)
(n=101, data missing for 10 cases).
Table 3: Delay from contact to arrival when volunteer was asked to attend as soon as possible
Time (in
Frequency
%
Cumulative %
minutes)
0-30
43
46.7
46.7
31-60
46
50.0
96.7
61-90
2
2.2
98.9
91-120
0
0
98.9
121-180
0
0
98.9
181-210
1
1.1
100.0
Total
92
100
Note N=101. Data missing for 10 cases.

If asked to attend at a certain time, the volunteer arrived between no time and
four and a half hours. On average, if asked to attend at a certain time, they arrived in
1 hour and 52 minutes (n=41, data missing for 14 cases). As one would expect, the
average time taken to attend for a volunteer, requested to attend at a certain time, was
greater than the average time taken to attend for a volunteer, requested to attend as
soon as possible. It is necessary to consider whether volunteers who were requested to
arrive at a certain time did indeed arrive by that certain time. If asked to attend at a
certain time, the volunteer arrived earlier in 52.5 per cent of cases, on time in 32.5 per
cent and late in 15.0 per cent of cases (n=41, data missing in 1 case). However,
future research should reconsider why they were requested to attend at a certain time
and whether that delay could be reduced.
To summarise, whilst current detention times and conditions may not often be
considered as non-compliant with the Convention, there is nevertheless a strong case
for dealing with young suspects expediently. One major cause of delay is waiting for
the appropriate adult. As predicted by Home Office (1995), the use of volunteer
appropriate adult services in the case study area meant that an appropriate adult could
often attend within 30 minutes and, if not, nearly always within 1 hour. This could
reduce delays for the young person. There may be scope for improving the time in
which the volunteer is contacted by the police and increasing the time for which
volunteers are on duty.
16

In Philip and Browns (1998) survey, 2 per cent of appropriate adults for juveniles were volunteers
from local panels.

56

(1b) Remand Prisoners

Legislation Unlike the legislation governing young suspects in police custody
(described above) which is essentially compliant with the HRA, there would appear
to be some cause for concern in relation to existing legislation surrounding bail. It is
necessary to briefly discuss Articles 5 and 6 - which are of particular significance in
relation to remand prisoners and the HRA.
Article 5 (the right to liberty & security of person) is relevant to the status of
pre-trial remand prisoners in relation to how the 1976 Bail Act is applied. As
indicated earlier, there should be a presumption of bail unless the defendant is likely
to fail to surrender to the court; commit further offences; interfere with witnesses;
pervert the course of justice; or is in need of protection. However, the 1993 Bail
Amendment Act and the 1994 Criminal Justice and Public Order Act introduced
automatic refusal of bail in certain cases and removal of presumption of bail in certain
others. The Law Commission (1999: 8) has identified particular facets of the bail
legislation that it considers vulnerable to challenge. These include:

Paragraph 2A of Part 1 of Schedule 1 to the Bail Act, which permits a court to refuse bail if the
been granted bail in the present proceedings, the defendant has been arrested under section 7 of the
Act

Section 25 of the Criminal Justice and Public Order Act 1994, which, in the absence of
exceptional circumstances, prohibits the granting of bail to a defendant who has previously been
convicted of an offence of homicide or rape and is now charged with another such offence.

Article 5 alerts us to a key question: what is the prospect that the courts can
defend and justify the current levels of pre-trial remand into custody? Victims of
arrest or detention in contravention of article 5 will have an enforceable right to
compensation (Law Commission, 1999). Additionally, to secure compliance with the
HRA defendants will in future need to be given clear reasons for their remand into
custody. There is evidence, from the small-scale study conducted by Brookman and
colleagues, that this is not always the case. Of note, several of the men interviewed
offered explanations for their custodial remand which had little to do with the 1976
Bail Act and its subsequent amendments. For example, one man believed that his
remand into custody was the result of having come before a Stipendiary Magistrate
considered to be harsher than Lay Magistrates. Another man, of mixed race, believed
his face didnt fit and that the purpose of his remand was to make him sweat.
Another of the men recounted the courts discussion of his remand as revolving
around his unstable personality and said that the courts had indicated to him that his
remand into custody would help him. Finally, one of the interviewees remained
confused about the reason stated for his remand; he had been told that remand into
custody was necessary to prevent him from interfering with witnesses, yet he was
unaware that there were any.
Most crucially perhaps, a significant number of men stated that the judgement
to remand them into custody was made in the absence of adequate information about
them or their case. That there had been a lack of information was a phrase repeated
by several of the men.
Article 6 (the right to a fair and public trial within a reasonable time) is of
particular importance for remand prisoners. Included in the consideration of whether
a fair trial was achieved is the pre-trial stage such as the right to be informed of the
nature and cause of the accusation, the right to be tried within a reasonable time and
the right to legal representation. The accounts from interviewees (discussed below)
57

throw light on how remand in custody can directly impact on the prospect of the
defendant subsequently achieving a fair trial.
Practice Let us now return the issue of delays within the CJS and their impact
upon remand prisoners. As outlined earlier, Article 6 of the Human Rights Act states
the Right to a fair and public trial within a reasonable time. Clearly the phrase
reasonable time is somewhat vague and subject to interpretation.
The length of time that defendants interviewed for the current study had spent
on remand varied widely from 4 days to 9 months. The average time spent on
remand in custody was 78 days. In 1999, the average time spent on remand for males
was 46 days (Home Office, 2000). Major conclusions cannot be drawn from such a
small sample but it seems likely that there are variations in waiting times across areas
of England and Wales. Another explanation could be that some of the men were
facing serious charges (for example, one man was on remand pending a murder
charge, another for attempted murder and kidnap, one for armed robbery and several
had been charged with robbery, several for possession with intent to supply a class A
drug). As such, long periods (sometimes up to 12 months) of remand were inevitable
because their cases needed to be tried in a Crown Court and sometimes involved the
preparation of reports and the collection of complex evidence.
Moreover, the mens concerns to exhaust all possibilities in relation to
securing bail hindered any clear focus upon their case. Half of the men we
interviewed were seeking bail at the time of interview. Those who were not had
either exhausted all available applications or had decided to spend time in custody
believing they were going to be found guilty as charged at court. Solicitors
acknowledged that remand prisoners tended to be particularly anxious, vulnerable,
difficult and generally demanded that all opportunities for bail be exhausted before
they could begin to focus upon their case.
A number of solicitors suggested that there existed an adjournment culture
within some courts, indicating that some courts were more amenable to delaying
proceedings than others. Prison officers were also critical of the time that remand
prisoners spent in custody awaiting trial. They implicated the slow pace of the
judicial system and one of the officers also suggested that defendants were sometimes
responsible for delays because of long periods of not guilty pleas subsequently
being replaced by guilty pleas.
Whatever the reasons for such delays (and they are undoubtedly multiple) the
impact upon defendants remanded into custody was clearly negative. Not knowing
the date of their trial added to the mens sense of confusion and frustration. Many
men felt that the court processes were unnecessarily long and drawn out resulting in
long periods on remand. Defendants, prison officers and the prison-probation officer
all recognised during interview that prison was far from the best environment to
prepare for court: issues such as difficulties in accessing solicitors and the general
negative effects of imprisonment on ones morale were cited as examples. One prison
officer noted that remand prisoners had no access to showers prior to court
appearances and felt that this, once again, hindered defendants physical appearance
at court. Whilst we do not intend to discuss here the many negative social impacts
that remand into custody has upon a defendant (see Caddle and White, 1994; Casale,
1989) it is important to note that in reality, such issues cannot be separated from the
question of access to justice. Prisoners frequently talked about difficulties relating to
their family, housing, health and other social issues. It was evident that such
concerns were intrinsically linked to their remand status, were commonly exacerbated
by their imprisonment and may have some influence on outcome at trial. As the
prison probation officer aptly stated:
58

It is an anxious time for them (remand prisoners) in terms of court outcome

which is heightened as they are separated from family support networks.
In summary, Article 6, Section 2b of the Human Rights Act specifies the
minimum right to have adequate time and facilities for the preparation of his
defence. Whilst time is often not a problem, there is little doubt that awaiting trial
on remand in custody is far from conducive to preparing a defence, either physically
or emotionally. Defendants experienced confusion and frustration at long periods of
remand and uncertainty with regards to trial dates. Many felt that some negative
impact might be realised in the courtroom.
2. Access To Legal Advice
(2a) Young Suspects
Legislation. Under domestic law, most suspects are entitled to legal advice.
(PACE s.58(1); Annex B of Code C). Access can be legally delayed in very limited
circumstances (PACE s.58(8); Annex B of Code C). These exceptions might be open
to challenge under the Convention (Cheney et al, 1999)). In fact, in the recent cases
of Magee v United Kingdom (The Times, June 20, 2000) and Averill v United
Kingdom (The Times, June 20, 2000), the ECHR held the denial of access to a
solicitor amounted in a violation of Article 6 (Loveland, 2000). Otherwise, the
regime for detention established by PACE is thought to generally comply with the
Convention (Cheney et al 1999:57).
Under the domestic regime, there is a clear obligation on the police to inform
suspects of their right to legal advice (Code C, para 6.1). No police officer should
attempt to dissuade a suspect. Where it is requested, the custody officer must act
without delay to secure it (Code C, para 6.7). Refusals to legal advice must be
recorded (Code C para 6.5). All police station work is paid for by the state. Article 6
only requires that free assistance is provided when the interests of justice so require
(that is when cases are sufficiently serious or when the suspect is vulnerable).
Therefore, in this sense, PACE exceeds the Conventions requirements (Sanders and
Young, 2000)
The question, therefore, becomes whether the police comply with PACE and,
hence, the Convention. Specifically, do the police inform suspects of their right to
legal advice and do they refrain from denying or attempting to dissuade?
Practice. The majority of suspects are given written and oral information
(Sanders et al, 1989; Brown et al, 1992), but young suspects are one group for which
the information is likely to be omitted (Brown et al, 1992).
Philips and Brown (1998) found 33 per cent of young suspects requested legal
advice, compared with 39% of adult suspects. However, there were found to be
regional variations, which ranged from 11 to 58 per cent. Overall, this does represent
an increase from previous studies (Dixon, 1990; Brown et al., 1992). It is necessary
to consider why the take-up rate is still low.
Sanders et al (1989) identified ploys used to discourage asking for legal
advice, some of which were specifically applied to juveniles, who are, by reason of
their age, particularly susceptible to such ploys. For example, some custody officers
were found to offer legal advice to juveniles, but then suggested that the juveniles
decisions should be delayed until their appropriate adults arrived. The appropriate
adult would be told that the juvenile had already refused legal advice earlier, thus
discouraging them from taking up the offer themselves.
59

Code C states that juveniles should be offered access to legal advice

immediately and any acceptance should be acted upon without waiting for the
appropriate adult's arrival (note of guidance 3G). However, more recent research has
found that the use the aforementioned ploys persists (Brown et al, 1992). Young
suspects may not be informed at all or only in outline of there right to legal advice
until their appropriate adult arrives. There will have probably been a delay in waiting
for the appropriate adult and, as Dixon (1990) points out, the idea of a further delay
makes offer of legal advice most unappealing. Indeed, Philips and Brown (1998:110)
found that suspects who obtained legal advice spent longer in custody than those not
legally advised: just over 9 hours compared with five and a half.
Moreover, not all requests lead to legal representatives being contacted
immediately or legal advice being received. Irving and McKenzie (1989) found that
custody officers may delay implementing requests for legal advice until the
appropriate adult arrives. Consequently, considerable delays could arise in waiting
for the legal representative could arise and the young person could even cancel their
request (Brown, 1997). Unfortunately, the aforementioned studies do not distinguish
between adult and young suspects when reporting contact and attrition rates. Overall,
in Philips and Browns (1998) survey, a legal representative was contacted in 88 per
cent of cases where one had been requested. The same survey found that 33 per cent
of suspects received legal advice.
Additionally, the appropriate adult may chose to exercise the right to legal
advice on behalf of the juvenile (Code C para 3.13). Brown et al (1992) found that
one quarter of appropriate adults were not told about the right to legal advice.
Sanders et al (1989) found that, when appropriate adults were asked whether they
wanted a legal representative, the question was asked in such way as to presume the
answer was no.
The introduction of trained volunteer appropriate adults may also influence
take up rates. Training should include the appropriate adults rights and
responsibilities under Codes (Pierpoint, 2000). In fact, one explanation for the
increase in requesting legal advice could be that many volunteer appropriate adult
services now have a policy for asking for legal advice as a matter of course. In the
national survey of YOTS, 73.4 per cent of YOTs, co-ordinating volunteer appropriate
adult services, reported that the presence of a legal adviser was insisted upon for the
police interview (N=45, 42 valid cases).
Indeed, the voluntary organisation examined in the case study required a legal
representative to be present. This requirement was included in its protocols and
training. In 92.9 per cent of call-outs, the young person had a legal representative
(n=155, data missing in 5 cases).17
In the remaining 2.6 per cent of call-outs, the young person did not have a
legal representative (n=155, data missing in 5 cases). In 50 per cent of these cases,
volunteers reported the young person refused a legal representative. In 25 per cent of
these cases, the volunteer reported that young person did not request a legal
representative until his or her rights were read (although it is not clear why a legal
representative was not then obtained). In the remaining 25 per cent of these cases, the
volunteer reported that the young person was answering bail (although it is not clear
17

However, for 1.3 per cent of these call-outs, the volunteer noted on the questionnaire that that the
young person did not have a legal representative at first. This may have happened in other call-outs,
even though volunteers did not report it. It was not possible to ascertain the precise number of callouts, in which the young person did not have a legal representative at first, given that no
questionnaire item was included on this topic. In fact, the author discarded a question on this topic
after the pilot study. This question was abandoned to render the questionnaire shorter and, hence, to
attempt to improve the response rate (Fink and Kosecoff, 1998).

60

why a legal representative was not obtained) (n=4). From the data collected in the
survey, it was impossible to ascertain whether the volunteer was unaware of this
requirement.
It should be noted, however, that once legal advice is secured it varies in
mode, quantity and quality. Philips and Brown (1998) estimated that 20 per cent of
suspects are advised solely over the telephone, and earlier studies estimate that the
figure is higher (Brown et al 1992; Brown, 1991). When they do attend the interview,
they generally seem unwilling to play an active role in the interview (Evans, 1993). In
the past, much of this could have been due to the use of solicitors representatives (for
example, trainee solicitors and employees of outside agencies supplying legal advice
services to firms of solicitors on contract). Representatives may lack legal expertise,
confidence, or may over-identify with the police because they may be former police
officers themselves (McConville and Hodgson, 1993). However, fewer unaccredited
solicitors representatives are now used (Bucke and Brown, 1997) and Bridges and
Choongh (1998) have found that the accreditation scheme for police station legal
advisers has significantly improved the quality of advice at the police station.
It has been held that the state is not responsible for every shortcoming of a
lawyer appointed under the legal aid scheme, but should intervene if there is a
manifest failure to provide effective representation (Kamasinki v Austria (1991) 13
EHRR 36; F v UK (1992) 15 EHRR CD 32). Jennings (2001) reports that this
requirement is likely to intensify in respect of legal representatives provided under the
new Criminal Defence Service because of the closer links with the state. On 2nd
April 2001, the old system of criminal legal aid was replaced by the Criminal
Defence Service, administered by the Legal Services Commission.
To summarise, there is evidence that, compared to adults, young suspects are less
likely to be informed of their right to legal advice. They are less likely to request
legal advice and there is evidence that the police sometimes delay or avoid
implementing requests received. The use of volunteers, has however, increased
substantially the level of legal representation of young suspects.
(2b) Remand Prisoners
The issue of legal advice is one of relevance to remand prisoners. In fact the
research conducted (by Brookman et al., 2001) found it to be at the forefront of
remand prisoners minds.
One of the most persistent difficulties reported by men in custody awaiting
trial was access to their legal representative. The main source of frustration was lack
of face-to-face contact with legal personnel beyond the courtroom. All but one of the
men expressed some kind of concern or grievance in relation to accessing their
solicitors. Difficulties in securing such contact took a number of different forms. For
some of the men, difficulties in maintaining face-to-face contact arose due to broken
visits by solicitors:
Hes broken appointments plenty some crap about being stuck in the
court.
Other men felt that telephone contact was a more reliable method but
identified expense as a fundamental drawback:
You just cant contact them (solicitors) only with your own phone card but
theyre expensive to buy.
Two of the men had asked family members to contact the solicitor during
domestic visits or during telephone conversations. This overcame the problem of
using the valuable resource of a telephone card for what was seen by some of the men
as wasteful:
61

I sometimes write to my solicitor. I never phone him I wouldnt waste a

phone card on him.
A small number of men had actively chosen not to see their solicitors other
than at court either because this was viewed as an easier option or because any other
contact was perceived as unnecessary. However, the general picture was one of
remand prisoners unhappy at the level of personal contact they had been able to
maintain with their solicitor. For some men, all available options of contacting their
legal representative were seen to have failed:
The solicitor doesnt visit me so I dont know whats going on. He doesnt
reply to my letters and if I ring I get the secretary who says they will write but
they never do.
Given the level of dissatisfaction expressed relating to accessing legal
representatives, it is perhaps surprising that most remand prisoners reported being
satisfied with the quality of advice they eventually received. This would suggest that
their concerns about access were indeed real and not the product of a culture of
complaining on the part of prisoners.
Interestingly, the problem of access was as fundamental an issue for solicitors
as for their clients and they all reported problems regarding speed of access.
Commonly this was attributed to organisational constraints within local prisons.
These were judged to be inflexible with only limited slots in which visits could be
made. As one solicitor put it:
You have to fit in. The prison is completely inflexible.
Several solicitors noted that regular visiting opportunities coincided with court
times or domestic visits and emergency visits were not available:
The time you have to ring to book into the prison is the time youre most
busy in court. If you decide on Monday afternoon that you need to see a client
urgently, you cant ring until Tuesday morning and then you wont be able to
see them until Wednesday morning. Only very limited visiting is allowed in
the afternoon, its mostly mornings.
It was also observed that, in some prisons, the time that could be spent with
clients was constrained due to the demands of the prison routine, fixed meal times
and the availability of staff to escort prisoners to interviews with their solicitors. In
addition, security measures were described by one solicitor as excessive and
constraining. It was also the case that some solicitors constrained themselves by
booking to see multiple clients within one visit. This restricted the time that could be
spent with individual clients but sometimes also meant that clients at the back of the
queue might completely miss their visit if prior appointments ran over time. In
addition, some solicitors had to juggle on call duties with prison visits.
Prison officers also acknowledged that difficulties existed with regard to the
level of contact between remand prisoners and their solicitors. However, unlike
solicitors who generally attributed such difficulties to organisational constraints
within local prisons, prison officers felt that the blame lay largely with solicitors
themselves. For example, they suggested that the practice of double or quadruple
bookings by solicitors meant that some prisoners might have to wait for several
hours to see their solicitor or not be able to see him or her at all on the allocated day,
sometimes after an extended period of waiting. Incidentally, the prison in which the
research was conducted operated a legal visits system such that all men with
appointments to see the same solicitor during a given time slot (morning or afternoon)
would be escorted to the legal visits area where they would wait for their turn. This
system added to the frustrations at not eventually being seen. Prison officers were
unanimous in the view that some solicitors forgot about their clients on remand and
did not give them a fair deal. One prison officer was also critical of the limited
62

visit slots available within the prison. Despite such differences of opinion regarding
the causes of limited contact between solicitors and clients on remand, the suggestion
that the main arena for access between defendants and their legal representative was
the courts was reiterated by prison officers.
DISCUSSION
To return to the central question, what are the implications of the HRA for
young suspects and remand prisoners? We have focused on Articles 5 and 6 in
relation to the issues of delays in the criminal justice process and access to legal
advice.
The first implication of the HRA is that legislation should be compatible with
Convention rights. Much of the domestic law considered here seems to comply with
the Convention. The exception here is that certain aspects of bail legislation would
appear to be incompatible. Section 4 provides that, where it is not possible to
interpret legislation in a way that is compatible with the Convention rights, a higher
court should make a declaration of incompatibility for primary legislation. This
triggers a new power that allows a Minister to make a remedial order to amend the
legislation to bring it into line with the Convention rights. In any event, the exception
of bail aside, at times the practices of the Police and Prison Service do not appear to
be compatible. As recognised by Whitfield (2000): The whole of the criminal justice
sector has laudable policies on paper but the gap between these and practice
remains alarmingly wide. The second implication of the HRA is that public
authorities are required to act compatibly in practice, as well as on paper.
In this respect we have a number of recommendations for practice, and, where
relevant, policy. Regarding information on the reason for arrest, Kilkelly (2000) has
argued that the application of Article 5(2) to child suspects requires an appropriate
adult to be present to explain the charge. As demonstrated above, preferably trained
appropriate adults can also assist in the application of Article 6 in ensuring access to
legal advice for the young suspect. The use of volunteer appropriate adults can
reduce delays in the spirit of Articles 5 and 6.18 However, volunteers should
complete rigorous training programmes covering the substantive issues and skills
required to be able to execute the appropriate adult role as envisaged by the PACE
Codes. They should also be correctly recruited, managed, and supported on technical
and emotional matters (Pierpoint, 2000a).
18

However, the introduction of volunteers has not solved all the problems, which have been associated
with parent and social worker appropriate adults, particularly in relation to the police interview
(Pierpoint 2001). In relation to the police interview, the role of the appropriate adult in the interview is
not expected to act simply as an observer; and that the purposes of his or her presence are, first, to
advise the person being questioned and to observe whether or not the interview is being conducted
properly and fairly, and secondly, to facilitate communication with the person being interviewed.
(Code of Practice C para 11.16). The volunteers, who participated in the survey, did report a higher
level of contribution than Evans (1993) observed for parents and appropriate adults (but not social
workers alone). They contributed in 35 per cent of interviews (n=155). Moreover, the nature of the
contributions were consistent with appropriate adult role, for example, pointed out police questioning
unfair/inappropriate (13.8 per cent of responses), checked young person understood question(s) (12.1
per cent of responses) and stopped interview (10.3 per cent of responses). However, it seems that there
may have been instances where the volunteers should have contributed in the police interview in
relation to police practice, but failed to do so. Specifically, of those volunteers who rated the police as
poor, 56.3 per cent did not contribute (n=16). One might expect that if the volunteer did not rate the
police highly, he or she would have contributed in the interview. This was not found to be the case
from the survey results.

63

Also pivotal in reducing delays in the detention of young suspects is the

custody officer. It is the custody officers responsibility to conduct various reviews
whilst a young person is detained, at which he or she must decide where there is
sufficient evidence to charge (PACE Ss 42-44).19 The research suggests that there is
room for improvement in the practice of custody officers, in terms of ensuring these
reviews take place, reducing delays in reviews taking place (Morgan et al, 1991 as
cited by Brown, 1997) and paying greater attention to representations made by
suspects, legal representatives and appropriate adults at these reviews (Bottomley et
al, 1989 as cited by Brown, 1997).
There is also room for improvement in terms of the availability of legal
representatives to reduce delays. Whilst not considered to be the main cause for the
increase in detention times for young suspects (Brown, 1997), waiting for legal
representative been found to contribute to delays in custody for those who request
advice (Dixon, 1990; Philips and Brown, 1998). In fact, refusals for legal advice,
which must now be recorded, are second most often reported to be because of waiting
for the appropriate adult (Bucke and Brown, 1997). Sanders and Bridges (1990:507)
maintains that the need for legal advice is so important that it ought to be presumed
that all suspects want legal advice and that they should be required to take positive
steps to refuse it.
Regarding remand prisoners, although the various and complex problems
experienced by remand prisoners are unlikely to be resolved by human rights
legislation, the latter does put them into stronger focus. It will be interesting to see the
success rate of cases brought over the next few years. In the shorter term, the
implementation of the Crime and Disorder Act 1998 offers a potentially more
promising opportunity to tackle delays in the Criminal Justice System. This Act
amends the Prosecution of Offences Act 1985, which sets statutory time limits, and in
particular introduces tighter time limits for defendants under 18. It also includes a
package of measures springing from the Narey review which are designed to bring
cases promptly to court; for example, allowing cases to go directly to Crown Court.
The implications of these reforms have yet to be fully realised and they need to be
closely monitored over the next few years. Interestingly, recent figures indicate that
the remand population fell by 5% between May 2000 and May 2001 (Elkins, et al.,
2001). This welcome decrease may be the result of measures introduced as a result of
the Narey review.
Improving access to solicitors may require greater attention to promoting
communication between solicitors and their clients. This may involve greater
flexibility on the part of the Prison Service regarding legal visits and more realistic
programming of visits by solicitors.
To date, the concern has been about how different organisations can act in a
compliant manner and avoid judgements of non-compliance. For example, police
forces have recently conducted audits of their policies to check for human rights
compliance (Hill, 2000). Indeed, we have also been guilty of this thus far;
scrutinising agencies for compliance and recommending means for improved
compliance (see, Levenson, 2000b for similar discussions in relation to the prison
service). This can improve the experience of people in police custody or on remand
and we do not dispute the value of this approach when combined with other measures
outlined below.
The implications of the HRA do not stop there. If public authorities do not act
compatibly, the possibility remains that access to legal advice and police custody
conditions might be open to challenge under article 6 (Palmer, 2000). Firstly, judges
19

The first review no later then 6 hours after detention, the second 9 after first review and third and
subsequent no later than 9 after previous.

64

will have to take account of the Convention in deciding cases. Under domestic law,
breach of right is likely (although not inevitably)
to lead to exclusion of confession
evidence. Colvin (1999), of JUSTICE8, argues that the HRA adds strength to the
argument for excluding evidence obtained in breach of a fundamental right. It will be
harder for a judge not to exclude such evidence owing to the suspects right to a fair
trial. Secondly, victims may bring proceedings against public authority in question.
Courts may grant any remedy which is within their powers and which is just and
appropriate. Depending on the nature of proceedings, remedies could include
releasing the defendant or quashing a conviction. The Police also risk having to pay
damages under HRA s.8 (Parsons, 2001). In theory, individuals will be able to seek
redress in court from public authorities, including the Police and Prison Service, when
their convention rights have been breached.
This brings us on to perhaps our most important conclusion. It is vital that
young suspects and remand prisoners, and indeed all citizens, are made aware of their
rights. Without such knowledge citizens would not be able to mount appropriate
challenges against the system if and when it fails them in order to seek redress.
There is little doubt that there has been insufficient information passed to the general
public in the UK about the Human Rights Act and what it means for citizens
generally and how it can be used. We would suggest that an information leaflet of
some sort be provided to all households and institutions and posters displayed in
public places, including establishments frequented by young people given that they
are often neglected by publicity drives.
Moreover, as can be seen above, the vulnerable group of young suspects, for
example, does not tend to assert its rights in police custody, left alone once they
leave. We would, therefore, also support the case for the establishment of a Human
Rights Commission that has already been made in relation to another vulnerable
group, the mentally ill (Cooke and Baring, 2000:212). Given that the HRA has
provided potential victims the prospect of obtaining redress, it is an omission that the
Government had not yet founded a Human Rights Commission to assist them in
bringing cases under the HRA.
These reforms need to be considered alongside more fundamental questions
addressed in the literature such as why it is necessary to remand so many defendants
into custody and what alternatives could be used (e.g. see Haines and Octigan, 1999)
and whether police custody is being used appropriately for the investigation of crime
or whether it is being used to reproduce social control and inflict punishment (see
Choongh, 1997).
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Primary legislation
Children Act 1989

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Crime and Disorder Act 1998

Human Rights Act 1998
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Secondary legislation

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International instruments

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Cases

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68

The European Committee for the Prevention of Torture and

Inhuman or Degrading Treatment or Punishment (CPT)-Fundamentals, Structure, Objectives, Potentialities, Limits
Rudolf Schmuck1
1. Remarks on backgrounds and attitudes found in the field of the CPTs
activities.

here are very few bans that are more acknowledged in the public opinion of
societies and states than that on torture and inhuman or degrading treatment.
Nevertheless, it is still frequently disregarded in public institutions and by
law enforcement agents in nearly all civilised societies.
In the core issue of human rights, this is a remarkable discrepancy between
official principles and everyday reality of all political systems. Torture or at least
numerous other forms and grades of ill-treatment can still happen to anybody.
Of course frequency, procedures, and intensity differ in the various societies
and political or ideological systems. However, there are good reasons not to refrain
from being alert to human rights violations no matter the country in which persons are
taken into custody by public authorities. Some of these reasons shall be mentioned:
1.1.

Acceptance of some flexibility in exceptional cases.

Even in political systems, which boast extensive democratic control of

government and administration, legal safeguards against ill-treatment by the police,
prison staff and personnel in psychiatric hospitals are often neglected. Democratic
institutions and the public may not consider it necessary to be on a very high alert
because of their strong democratic roots and tradition or because the public opinion
even considers a certain flexibility in enforcing the law to be helpful. There is empirically- a stronger tendency within the public and the authorities to tolerate such
a flexibility, at least to some extent, where the more problematic groups of a society
are affected or there exist commonly repressed prejudices on ethnic or social
minorities (as for instance with gypsies and criminals).
1.2. Traditional principles and attitudes; resistance against new developments in
societies and states.
Traditional attitudes and principles often generate a tendency of the authorities
to neglect the rights of persons who are deprived of their liberty and subject of
investigations, punishment, or treatment. Ill give some examples:
1.2.1. In some countries, frequently in the former socialist states, but in no way only
there, an outstanding number of sentences are preferably based on the defendants
1

Copyright 2002 Rudolf Schmuck, published here by permission. Correspondence should be

addressed to Secretariat of the CPT, Council of Europe, F-67075 Strasbourg Cedex, France.
69

written confessions. Police agents and investigators often consider it to be a proof of

their professional skills to present confessions instead of circumstantial evidence.
This situation very easily provokes infringements of basic rights (information
about rights, notification of relatives and lawyers) of persons who are under
investigation and increase the risk of psychic or even corporal ill-treatment.
1.2.2. It is certainly true that the majority of policemen, guards, or psychiatric nurses
neither ill-treats apprehended persons, prisoners, or psychiatric patients, nor do they
support it. However, it is not unusual that black sheep are protected by other
members of the respective group because of a misinterpretation of loyalty.
Not all agencies have developed a professional code of conduct that not only
unconditionally rejects illegal behaviour of every civil servant but also refuses any
protection.
Aversion to possible conflicts with colleagues, anxiety to be not loyal to them,
or to be regarded a traitor usually deter even the law abiding agents from disclosing
illegal conduct. This attitude is still one of the main reasons why at least occasional
ill-treatment in police stations and prisons still happens even in highly civilised and
democratic countries and well organised agencies.
1.2.3. A third example is the lack of knowledge, understanding, and
acknowledgement of legal procedures, regulations, and restrictions. The CPT has
come across such attitudes on several occasions in particular in countries where
democratic rules were recently implemented.
Not too long ago, a CPT delegation visiting a psychiatric hospital and
examining the correct application of legal restrictions for the involuntary admittance
of patients was not shown any understanding for new legal restrictions applicable to
involuntary admittance of patients. The explanation of the facilities director for not
involving a court in the decisions on involuntary admittance was about the following:
We know that [for several years, recent] legislation requires the
decision of a judge for the involuntary admission of a patient. However, I do
not see any reason to involve a judge.
If police agents bring the person, he/she is usually taken into custody
for his/her own protection or to maintain the public safety. But in most cases
persons are accompanied to the hospital by their relatives, who bring him/her
here for their well being or proper medical treatment. Why shouldnt we trust
them?
Thats why we consider it to be sufficient that the hospitals doctor on
duty examines the person before he/she is admitted. Nobody has ever
complained or asked for a courts decision
Although this was an exceptional experience it raises a warning about what else
can be expected and where and when something similar could happen.
1.2.4. However, although even extreme violations of human rights are not so rare,
the main problems found are usually every day negligence and an overall apathy of
staff and authorities to inhuman and degrading living conditions. There are overcrowding, unacceptable sanitary and hygienic conditions, accommodation without
adequate lighting and ventilation or none at all, unnecessary and long lasting
isolation, lack of work or satisfying activities for years, sometimes decades, etc.
1.3. The efficiency of measures to control and prevent violations is limited.
70

Even when furthered or at least tolerated by the immediate social or professional

field, the final decision to violate basic human rights, to torture, to ill-treat, to insult
or to neglect duties or to take part in such violations is always made by an individual.
As it is the case with most of the criminal violations of law, the concrete situation is
usually hard to anticipate and prevent.
Consequently, many measures to prevent or at least suppress such infringements
are general (e.g. selection and professional training, generating a positive and lawabiding corporate identity) and therefore only promise to be successful in the long
run. However, there would be possible safeguards but they must be applied reliably:
1.3.1 Administrative control by senior officers, efficient and impartial
investigations following complaints about illegal behaviour, and more promising,
social control among colleagues diminish the risks of being treated illegally by law
enforcement agents.
1.3.2. Control by lawyers and relatives are important conditions for efficient
protection against illegal treatment by law enforcement agents. However, it requires
exact and immediate information for apprehended or interrogated citizens about their
rights, as well as the real possibility to reliably and immediately inform their lawyers
and relatives. It must be mentioned that this is one of the most important and most
frequently neglected issues the CPT has to deal with when visiting police stations.
2. Role and objectives of the CPT
The aim of Article 3 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms of 1950 is to eliminate torture and illtreatment. As already mentioned, this is an aim, which largely depends on the ethics
and attitudes of individuals. It will most certainly remain a so-called utopian
objective, even if governments and state officials take it seriously.
The realisation of the Conventions Article 3 remains within the sovereign
power and responsibility of the signatory states and is in many respects a political
programme and far from being everyday reality, particularly with regard to vulnerable
groups.
2.1.

Background and organisational structure of the Committee

It characterises the situation that the idea to build up an independent

organisation (similar to the ICRC) that would unrestrictedly look in particular into the
conditions, under which detained persons are held and treated was not initialised by
the government of a member state of the Council of Europe. A Swiss citizen, the
banker Jean Jaques Gautier, proposed a convention to found an international system
that enables investigation, officially and without restrictions, into all places, where
persons are deprived of their liberty.
Such a system could not be operated within the UN Committee Against
Torture (CAT) since visits of this committee to detention facilities within the
sovereign territory of a state are only possible in isolated cases with the consent of the
state concerned.
However, on the level of the Council of Europe a convention could be
prepared and finally adopted, which meets at least the basic requirements of an
effective examination system on this special issue of human rights. In 1987 the
European Convention for Prevention of Torture and Inhuman or Degrading
71

Treatment or Punishment (ECPT) was adopted by the Committee of Ministers and

since then ratified by now 43 member states of the Council of Europe. Consequently
the CPT should and eventually will consist of 43 members delegated to the
Committee by each of the Signatory Parties.
The Committee is an independent organisation within the structure of the
Council of Europe. Its members are not representatives of the country they come
from. As the Committee they act as a whole and consider independently within the
Committees plenary meetings, during visits, and when deciding on future visits,
reports and reactions of the CPT. No member takes part in a visit to his/her country of
origin.
A member is chosen from three proposals of a state and elected for a period of
four years by the Committee of Ministers. All final decisions of the Committee are
taken by the majority of the members present in plenary.
2.2.

The nature of the CPTs mandate.

With regard to the Convention for the Protection of Human Rights the
mandate2 of the CPT is specialised. It focuses on persons who are, for what reason
ever, deprived of their liberty by acts or under responsibility of public authorities.
They are, as a vulnerable social group, endangered in all societies, whatever the
political structure might be.
However, prevention of torture and ill-treatment does not and cannot mean
the prevention of torture etc. in the sense of a total elimination. Insofar, the CPTs
objective is also a utopian and ideal one.
Although ambitious aims are very important fundamentals to achieve at least
basic changes, we always have to keep an eye on the reality, which means reasonably
achievable results. It is a different question how to push the limits, which is mainly a
question of strategy and of patience.
Consequently, in practice the CPTs mission as it appears from the ECPT,
Article 1, sounds modest:
The Committee shall, by means of visits examine the treatment of persons
deprived of their liberty with a view of strengthening, if necessary, the
protection of such persons from torture and from inhuman or degrading
treatment or punishment.
But there is another - a practical - limitation of the CPTs direct efficiency: The
Committee only consists of the number of members that coincides with the number of
signatory states of the Convention.
It has to be taken into account that, at present, only about 36 people3 have to
look after tens of thousands of various facilities: prisons, police stations, psychiatric
hospitals from the Far-East of Russia to the Netherlandss Antilles and millions of
persons who are deprived of their liberty.
Keeping this in mind, what after all, really remains for an organisation like the
CPT to work on and how do the CPTs activities look like in practice?
2.3.
The CPT, a partner for governmental authorities and non-governmental
organisations (NGOs)

Laid down in the European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment(ECPT) of 1987.
3
Due to the expiry of terms not all signatory states are constantly represented by a national
CPT member)
72

Although its direct influence on individual cases is modest for the reasons that
were mentioned, both the public and the governments of the member states pay
considerable attention to the Committees activities. And, even more important, the
level of confidence in the CPTs activities and of approval from both governmental
authorities and the NGOs has become very high. There are some good reasons for
this phenomenon:

Although on the administration level of some signatory states protection of basic

human rights is still not as common as it should be, it has become an important
issue in the public and therefore also for the awareness of the governments.
In all facilities they visit, the CPTs delegations examine and consider the
conditions independently and without the blind spots that develop by handling
problems for too a long time or are too clustered together. Therefore the CPTs
findings, comments, and recommendations are in fact helpful for the authorities
on the political level. They become aware of many every day problems within the
institutions for which they are responsible but about which are not always reliably
informed by their own subordinate administrations.
Moreover, it is usually easier to collect more or additional financial funds
from the general budget with the support of some pressure from an international
organisation.

For the CPT as a whole as well as - during visits -for the delegations, national and
local NGOs are valuable informants about places to visit and sometimes even
individual cases to look after.
On the other hand the CPT is an important and sometimes the only partner
to achieve their goal of influencing and improving the living conditions of people
who are held in custody of their countries police-, correctional- or psychiatric
institutions.

Finally, for both sides the NGOs and the Governments, the CPT, which is bound
by the principle of confidentiality, appears to be an experienced, safe, and reliable
partner to deal with the numerous and complex problems related to the protection
of human rights.

2.4.

Details of the CPTs mandate.

The CPT has to visit places of all types of detention in the member states of
the Convention to examine how people deprived of their liberty are treated. If
necessary, it recommends general or detailed improvements. The CPTs role is
essentially preventive in nature and its main purpose is to forestall torture, inhuman,
and degrading treatment or punishment.
To fulfil this role the Committee must explore a wide range of issues in order
to assess not only whether there is an imminent risk of ill-treatment but also whether
conditions and circumstances exist which could degenerate into ill-treatment or even
torture. These issues include the
- rights of persons who are deprived of their liberty,
- custody and interrogation procedures,
- disciplinary procedures,
- handling of complaints
- physical conditions of detention,
- activities,
- health care and the standards of hygiene.
73

2.5.

The CPTs working principles and methods.

2.5.1. The CPT is not a judicial body: To understand the CPTs working principles
one must keep in mind that it is not meant to be a judicial system that is merely
applied after the human rights of individuals have already been violated. This was
and still is within the jurisdiction of the former European Human Rights Commission,
which recently was transformed into the European Court for Human Rights in
Strasbourg.
Violations of human rights of detained individuals or groups found on the spot
by a visiting delegation result in requests for adequate inquiries by the state
authorities of concern and in information of the Committee about the outcome. Thus,
individuals under certain circumstances may enjoy an advantage by the CPTs field
activities in custodial facilities of all kinds. However, the system laid down in the by
the ECPT aims at the prevention of violations of human rights in general. It focuses in
particular on situations where the risks of ill-treatment are exceptionally high, namely
in places where people are kept in detention against their will.
2.5.2. The CPTs activities are based on confidentiality. Another fundamental
principle the CPT to which it is bound by the ECPT is confidentiality. There are
only two exceptions to this principle:
As soon as the government concerned authorises the publication of the
findings or publishes them itself.
The Committee itself can lift the confidentiality by a public statement in the
case of a lack of co-operation from the side of a member states government.
The latter is also the most drastic and severe measure the CPT can take against a
contracting party and not justified only by the mere fact of the existence of conditions
or treatment that do not comply with human rights or minimum standards. A public
statement is meant only as a reaction on the refusal of a government to co-operate
with the CPT in the view to improving a situation found or investigating violations of
human rights.
2.6.

Co-operation with the governments and the principle of confidentiality.

Strict confidentiality is seen as, and certainly is, the necessary consequence of
the spirit of mutual understanding and co-operation upon which the Convention is
based. However, in practice it has also turned out to be an obstacle. Occasionally
suggestions were made to improve the situation, e.g. by favouring and emphasising
more frequent and intensive contacts with Non-Governmental Organisations
(NGOs). However, although NGOs are indispensable informants to the CPT the
fundamentals laid down in the ECPT must be kept in mind.
2.6.1. The CPTs formal partners: The CPTs official contacts with its formal
partners, the governmental agencies, are and will remain the most important resources
of information about all legal issues, places where people are detained and events,
which are or might be of concern for the CPTs work.
Within the visited facilities and agencies persons, who are directly responsible
for the implementation of detention, are indispensable partners too: Prison- and
police officers, penitentiary judges, prosecutors etc., but also the states own
74

independent supervisory bodies as ombudsmen or visiting committees appointed by

the government.
In return these groups must be specifically informed of the standards and
recommendations issued by the CPT to be able to implement them or supervise their
proper implementation.
On the other hand the governmental agencies are also responsible for the
distribution of information on the existence of the CPT, its mandate, and powers to
those in charge of detention facilities and naturally to the detainees themselves.
Experience has shown that, since these obligations are not always taken
seriously, responsible senior police and correctional officers occasionally lack
sufficient information about the power and mandate of the CPTs delegations. It
frequently results in problems with access to medical files and other documentation as
well as to certain parts or rooms in detention facilities.
To prepare the CPTs visits within the countries concerned the governments
must nominate liaison officers. It is their obligation to inform the agencies within
their jurisdiction about the rights and the power of the visiting delegations (e.g.
undisturbed access to documents, detainees, and places) and in general about the
CPTs mandate. They also have to support the delegations if they run into problems
during the visit4.
2.6.2. Informal partners: Although the contacts to NGOs5 (either in general or
during visits) are not always as informative as they should be, the CPT as a whole as
well as the delegations could not work successfully without them. But there are also
numerous contacts with individuals (mostly lawyers, doctors nurses social workers,
visitors to inmates of detention facilities, etc.), who inform the CPT either by letters
to Strasbourg or on the spot about detained persons, whose rights they fear or know to
be violated.
2.6.3. Co-operation: As already mentioned, the relations between the CPT and the
governments of the participating states can only be fruitful on a basis of close cooperation. (ECPT, Article 3) The Convention also describes the most important
mutual obligations of both the CPT and the governments:
The CPTs part is mainly described in
Art. 7 ECPT:
The Committee shall organise visits6 to places referred to in Article 2
ECPT7,
Art. 8 ECPT:
The Committee shall notify the Government of the Party of its intention
to carry out a visit. After such notification, it may at any time visit any
place referred to in Article 2.
Art. 10 ECPT:
4

This can happen in particular when local authorities were not supplied in time with
proper information and therefore refuse access to places or documents for which the delegation
is asking.
4 E.g. the Helsinki Committees, the national Associations for the Prevention of Torture,
Lawyers Associations, etc.
6
Apart from periodic visits, the Committee may organise such other visits as appear to it as
required in the circumstances.
7
Art.3 ECPT: Each party shall permit visits, . to any place within its jurisdiction where
persons are deprived of their liberty by a public authority.
75

After each visit the Committee shall draw up a report on the facts found
during the visit, taking account of any observations which my have been
submitted by the party concerned. It shall transmit to the latter its report
containing any recommendations it considers necessary. The Committee
may consult with the Party with a view to suggesting, if necessary,
improvements in the protection of persons deprived of their liberty.
ECPT:

The following Articles describe obligations of the signatory states of the

Art. 2 ECPT:
Permission of visits to any place where persons are deprived of their
liberty.
Art. 8 Par. 2 ECPT:
A party shall provide the Committee with the following facilities to carry
out its task:
a. access to its territory and the right to travel without restriction;
b. full information on places where persons deprived of their liberty are
being held;
c. unlimited access to any place where persons are deprived of their
liberty, including the right to move inside such places without restriction;
d. other information available to the party which is necessary for the
Committee to carry out its task. (In seeking such information the
Committee shall have regard to applicable rules of national law and
professional ethics.
Art.8, Par. 3 ECPT:
The Committee may interview in private persons deprived of their
liberty.
Art.8, Par. 4 ECPT:
The Committee may communicate freely with any person whom it
believes can supply relevant information.
Art.8 Par. 5 ECPT:
If necessary, the Committee may immediately communicate observations
to the competent authorities of the Party concerned.

However, a fruitful co-operation as it is meant in Art. 3 ECPT calls for

frequent and various activities and elaborate contacts between the CPT and all
administration levels of the Parties concerned.
At present contacts with the
personnel, which is directly responsible for arrested or otherwise detained persons are
limited to the delegation members and only happen during visits.
The contacts between the CPT and the governments are usually also limited to
meetings with officials during visits (initial and final talks), information seminars
before the very first visit to a country is carried out, occasional high level talks and
the exchange of letters (requests for information and responses). This is far from
being a dynamic exchange of ideas and opinions.
It is also known that in many countries contacts between the government level
and the officers working at the places of detention are limited and often poor. Very
often not even reliable information about the CPTs issues, its reports, standards, and
recommendations is brought to the knowledge of the people who are charged with the
everyday work and problems.

76

2.6.4. Ongoing dialogue: At present, the dialogue between the CPT and the member
states is not satisfactory. The periods between periodic visits (every 4 to 5 years) and
the contact between these visits is limited to an occasional exchange of letters.
This situation is due to the fact that neither the personnel resources in the
CPTs secretariat nor the working methods have changed or have been adapted with
respect to an increase of the membership of the Committee from about 15 in 1989 to
43 today. A discussion is taking place at present on reforming the practice of the
CPT with the view that shorter and more targeted visits should be carried out more
frequently by smaller delegations.
Additionally, at national level it would be important that NGOs and
individual professionals build up contacts with the governmental administration to try
to improve situations that have been criticised by the CPT. In some European states,
e.g. Austria, which at first was severely criticised for violations of human rights by
the police, citizens committees were implemented by law and empowered to act in a
similar way as the CPT.
3. The CPTs Main Instruments: Visits, Recommendations and Consultations.
3.1.

Carrying out a visit in practice

The CPT always announces the periodic visits, which it intends to carry out
during the following year. The exact dates of the visit, the composition of the
delegation, and a preliminary list of places to be visited are brought to the attention of
the state concerned about two weeks in advance. However, these lists do not bind the
delegations; they may decide on the spot to see additional facilities or even change
their itinerary partly or completely, depending on actual information that they might
receive either from the authorities or NGOs.
Delegations for a medium sized country normally consist of 4 5 Committee
members, 1 or 2 members of the CPTs Secretariat and interpreters. One or two
experts join the delegation if necessary.
The liaison officers arrange the initial meetings to discuss matters of interest
for the CPTs work with governmental representatives from the Ministries concerned.
Therefore, every visit usually starts in the respective countrys capital, but in some
cases sub-delegations could start immediately with visits to facilities at other places.
Parallel to or even before the initial talks with representatives of the
government the first day in the capital is usually also devoted to discussions with
NGOs, representatives of the ombudsmans office, the bar association,
representatives of the UNHCR and other groups. They provide the delegation with
relevant actual information. Depending on the information received the delegation
decides on the completion of the list of places to visit. However, even in the course
of a visit necessary changes can happen and are decided on the spot if the delegation
or a sub-delegation has reasons to do so.
3.1.1. Visits to long term institutions: Depending on their size prisons take usually at
least two or three days. If they had already been visited before by a CPT delegation
only those places or areas are examined, which were formerly criticised.
In a prison which is visited for the first time extensive and detailed talks with
the director, the top management and the senior officers as well as with the heads of
the unions precede an orientation tour. In this way the delegation gains a first
impression of the premises, the overall state of maintenance and repair, the
workshops and the various facilities, which are necessary to run a prison properly.
77

Subsequently single members or groups of two start to examine details,

among others:
Size, lighting and ventilation of the cells and the occupancy rate.
Condition, shape, and accessibility of the sanitary equipment (toilets,
showers).
Overall cleanliness and the condition of bedding.
Provisions for leisure activities (number, size and equipment of the
exercise yards).
Hospital and medical equipment.
Segregation units and disciplinary cells.
Kitchens and food storage.
Visiting facilities
Registers and files showing the background of disciplinary measures, the
handling of complaints, etc.
Registers and files showing disciplinary measures taken against prison
officers.
A main issue is to talk with the inmates in private with regard to the living
conditions and their treatment in the prison itself or in other institutions (police
detention, holding facilities for aliens, etc.) However, there are also extensive talks
with the guards about their working situation, the overall working climate and
problems about which they want to complain.
The thorough information about the law and the instructions governing the
proceedings in all institutions visited is necessary to complete the information and to
consider the conditions of detention correctly. Prior to the visit the CPTs secretariat
distributes to the delegation members texts or excerpts of applicable laws and
regulations as far as available as well as general information material on the actual
political and living conditions in the respective state.
At the end of every visit final talks about the delegations findings are held
with the director and all senior officers, who are present. At this occasion first
recommendations or requests for urgent measures (immediate observations Art.8
Par.5 ECTP) are made known to the prison staff.
Similar procedures apply to the visits to psychiatric hospitals, long-term
holding centres for aliens, police detention facilities, etc.
3.1.2. Police stations and short term holding facilities: Police stations and adjacent
short-term arrest facilities are usually visited during nighttime, when apprehensions
frequently take place and persons are brought in for first interrogations. Experience
has shown that ill-treatment and even torture in most cases happen during this first
encounter to extract quick confessions or to intimidate and demoralise arrested
persons in order to get confessions later. During this relatively short period of time
arrested people are highly vulnerable.
It is also very important to check thoroughly the registers and files of these
facilities since the protective measures provided by law (information of relatives and
lawyers, information about rights, observance of limited holding terms, etc.) are often
disregarded by the responsible police officers and investigators.
An indicator for ill-treatment of apprehended persons is the presence of
objects that could be used for illegal treatment or at least for threatening, as there are
wires, electric truncheons, cables etc. Sometimes they can be even found openly in
interrogation rooms, sometimes stored in the closets and lockers. CPT delegations
78

are entitled to examine the interior of such cases and even can request (and do so) a
safe to be opened if there is one.
3.1.3. Final talks: At the end of the visit the delegation meets to file a statement,
which is brought to the knowledge of the responsible representatives of the ministries
concerned or to the ministers themselves, who are often present during the final
talks at the very end of a mission.
Apart from a summary of the most important negative or positive observations
the so called immediate observations that were already notified during the visit are
repeated to inform the governmental representatives of the ministries concerned. On
immediate observations the CPT expects information about the measures taken
within three months.
3.1.4. Reports to the governments: According to Art. 10 Par. 1 ECPT a report about
the observations made during each visit is submitted to the government concerned.
Reports are drafted by the delegations in a special meeting. They have to be finally
adopted by the majority of the members present either in an accelerated procedure8 or
after having been discussed in plenary. Reports are absolutely confidential until the
Parties concerned publish them or agree to the publication. All published reports (and
responses) are available on the internet (http://www.cpt.coe.int.).
The governments are requested to answer the reports by an interim response
within three months and a final report six months later, which should already confirm
that and which measures have been taken pursuant to the recommendations made.
Based on the governments answers a continuous dialogue should develop to
discuss the problems that appear during the implementation of the measures
suggested by the CPT.
3.2.

Torture and ill-treatment

Although the term torture is an essential part of the ECPT and CPTs
official name it is not easy to clearly define its meaning. To describe the many and
various and changing methods of torture is not sufficient to make a clear distinction
between torture and other forms of ill-treatment. There are definitions, which
distinguish between ill-treatment and torture, gradually depending on how serious the
infliction on the victim has been. There are others that use the position of the
perpetrator or the specific occasion as criteria for a differentiation.
However, all of these definitions lack an additional and indispensable
dimension otherwise torture only appears to be a gradual increase of ill-treatment.
However, the Convention uses both terms and it is obvious that the formulation
suggests a basic not only a gradual difference in the quality of the infliction. It is the
purpose for its application. Historically torture had a clearly defined purpose, which
is still its main objective: To extract a confession or to make a person act in a certain
way. Insofar it must always be regarded a form of extortion.
While torture needs a purpose as an additional dimension for which it is
applied, the various and numerous forms of ill-treatment require the existence or the
development of standards to decide whether certain treatments or circumstances must
already be regarded as inhuman, degrading, or ill-treatment

The accelerated procedure only applies if the draft has been distributed to the members at
least two weeks prior to the plenary meeting in Strasbourg.
79

Apart from many clear cases which do not need any discussion there are
numerous ways of acting and a multitude of conditions that require thorough
considerations to decide whether they have to be regarded a violation of human rights
or are still tolerable. To ease this task the CPT has in the course of time developed or
adopted9 from various sources a list of standards that can be applied in many,
although not in all cases.
3.3.

The CPTs standards

Whereas torture and severe cases of ill-treatment are easy to identify, in

particular borderline cases of the latter raise the question of standards.
The ECPT does not contain any substantive standards in the treaty itself.
Since the Committees activities are aimed at further prevention rather than the
application of legal requirements, itself interprets its mandate as follows:
In carrying out its functions the CPT has the right to avail itself of legal
standards contained not only in the European Convention on Human Rights but also
in a number of 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 or quasi-judicial bodies acting in the same field. However, the Committee
may use it as a point of departure or reference when assessing the treatment of
persons deprived of their liberty in individual countries.
In its daily practice since 1989, the CPT has developed its own measuring
rods, in the light of the experience of its members and also through a careful and
well-balanced comparison of various systems of detention.
The standards were made public in some of the CPTs annual General Reports
and they are also collected and updated by an internal working group.
To give and example just some standards shall be mentioned.
3.3.1. Police custody: The CPT attaches particular importance to the rights and
protection of persons deprived of their liberty by the police. It therefore considers
three rights fundamental:
Information of relatives or a third party;
Access to a lawyer;
Access to a doctor.
Additionally, there are a series of other safeguards the CPT asks for, e.g.:
The fact of detention and the time spent in custody must be recorded
exactly and separately for each detained person.
Clear rules and guidelines about how interrogations have to be carried out
are expected to exist.
The CPT considers electronic recording of the complete interrogations an
important safeguard for the detainees and an advantage for the police.
Effective mechanisms to tackle
police misconduct (Inspections;
complaints procedures; disciplinary procedures and measures) must exist
and work in practice.
3.3.2. Imprisonment: Material conditions are of main importance, since the standard
of living conditions has an impact on the general environment and affects both
inmates and staff.
9

E.g. from decisions of the European Commission of Human Rights, which is now the
European Court of Human Rights.
80

Accommodation must meet the requirements of health and hygiene, must

offer a reasonable amount of space, lighting, ventilation, and heating. The
sanitary equipment should permit the inmates to comply with their needs
of nature unrestricted and in decent and clean conditions.
Running water but at least sufficient drinking water should be accessible
without restriction. The same applies to shower and bathing facilities.
Prisons must not be overcrowded and their official capacity should obey
the limits of at least 6 m2 per inmate for single and 4 m2 for multiple
occupation.
Prisoners (including those on remand) should spend at least 8 hours per
day outside their cells and being offered both work and proper activities
and at least a 1-hour outdoor exercise.
Staff should be thoroughly selected, trained, and supervised.
Health care services should meet modern standards as regards personnel
and equipment.

3.3.3. Psychiatric Hospitals: With an emphasis on proper medical care and

equipment the standards applied by the CPT are similar to those for prisons, in
particular as regards accommodation, activities, adequate leisure, and outdoor
facilities.
Detention under Aliens Legislation: Persons in custody for an extended
period of time under aliens legislation should be accommodated in facilities
specifically designed for that purpose. It means that the design and layout of the
premises should avoid as far as possible the impression of a prison situation.
The CPT in particular emphasises the careful selection, training, and qualities
of staff in the field of interpersonal communication.
Other points of view are the expulsion procedures and in particular the length
of time, a foreign national has to wait (under deprivation of his/her liberty) until being
finally removed from the country and the way the expulsions are carried out. The
CPT considers it entirely unacceptable for a person to be assaulted or even gagged for
that this purpose.
Moreover, the CPT stresses that any provision of medication to persons
subject to expulsion order must only be done on a medical decision and in accordance
with medical ethics.

Acknowledgement:
I feel sincerely obliged to the Austrian member of the CPT, Professor Dr. D. Renate
Kicker, University of Graz, whose treatise on the same subject I was allowed to use
for substantive additional information. In particular Chapter 3 of this presentation
largely refers to her paper.

81

ICCPR CASE LAW ON DETENTION, THE PROHIBITION OF

CRUEL TREATMENT AND SOME ISSUES PERTAINING TO
THE DEATH ROW PHENOMENON
Eva Rieter1
Introduction

t the outset I would like to say that this symposium is about exactly the
opposite of the terrorist attacks of September 11 that displayed a total
disregard for human lives and humane treatment. This symposium is about
finding common denominators for humane treatment that will sustain, instead of
destroy, the ethical standards of us as a society.
I was asked to do two things: (1) discuss some case law on detention issues by
the Human Rights Committee supervising the international human rights Covenant
and (2) discuss case law about the so called death row phenomenon.
Detainees are vulnerable by definition, also in a democracy. This makes it so
important to have international rules serving as a baseline for humane treatment in
detention. The International Covenant on Civil and Political Rights (ICCPR) contains
provisions designed to do just that.
The ICCPR, which is the acronym for the International Covenant on Civil and
Political Rights, is one component of the International Bill of Rights. It is derived
from the idea that the sovereignty ultimately lies with the people, not with states.
The international Bill of Rights consists of the Universal Declaration of
Human Rights2, the International Covenant on Economic, Social and Cultural
Rights,3 the aforementioned International Covenant on Civil and Political Rights
(ICCPR) 4, the First Optional Protocol to the ICCPR (laying down the individual
complaints procedure)5 and the Second Optional Protocol to the ICCPR (aiming at the
abolition of the death penalty).6
The International Bill of Rights is inspired, among others, on the US Bill of
Rights. Eleanor Roosevelt played an important part in the initial drafts and the Four
Freedoms speech of President Roosevelt served as a point of reference as well.
In this introduction I will give a brief overview of some detention issues as
they arose in the case law of the supervisory body to the ICCPR, as well as relate to
one detention issue in particular: the death row phenomenon. I will introduce this
with some very brief remarks on the complaint system under the ICCPR, as this is a
system that is not so well known here as it is in other parts of the Americas and in
Europe.
1

Copyright 2002 Eva Rieter, published here by permission. Correspondence should be addressed to
Maastricht University, Faculty of Law, Department of Criminal Law and Criminology, P.O. Box 616,
6200 MD Maastricht, The Netherlands.
2
For the text of the Universal Declaration see the website of the United Nations High Commissioner
for Human Rights: www.unhchr.ch. It is provided in more than 300 languages.
3
Treaty concluded in 1966, entered into force 1976,145 States parties (as of August 2001). Check
www.unhchr.ch (under "treaties") for a hyperlinked list of international human rights instruments with
the full text and the most recent updates of ratifications.
4
Treaty concluded in 1966, entered into force 1976,147 States parties (as of August 2001).
5
Treaty concluded in 1966, entered into force 1976, 97 States parties (as of August 2001)
6
Treaty concluded in 1989, entered into force 1991, 45 States parties (as of August 2001).
83

1. Context: the ICCPR and the Right of Individual Complaint

States parties and the supervisory committee. The International Covenant on
Civil and Political Rights (ICCPR) now has 147 States parties. Its Human Rights
Committee, consisting of 18 independent experts, supervises to what extent this treaty
is respected. This Committee's case law clarifies the obligations of States parties to
the treaty. The present US member is Professor Louis Henkin. The previous US
member was Professor Buergenthal. Prior to that appointment Buergenthal was the
President of the Inter-American Court of Human Rights in San Jos, Costa Rica and
currently he is a Justice at the International Court of Justice in The Hague.
States parties obligations. States parties must periodically send in reports
explaining how their legislation and practice answers to the obligations they assumed
under the ICCPR.7 During a meeting open to the public, a delegation of the state
involved answers questions posed by Committee members. Later the Committee
publishes its official comments on the state report. When domestic courts are dealing
with provisions of the ICCPR, either because the domestic legal system gives them
direct effect or because they inform the meaning of domestic legal concepts, they
must take into account the interpretation of the Human Rights Committee as the most
authoritative interpretation of ICCPR-law.
Individual complaints. Under the first Optional Protocol to the ICCPR, 97
states have also recognised the right of persons under their jurisdiction to submit
individual complaints to the Committee, once domestic remedies have been
exhausted. So far, the US has not recognised the right of its citizens to do this.
The first cases under the Optional Protocol (OP), in the late 1970s and early
1980s, almost all were directed against Uruguay. This is not because at the time the
situation in Uruguay was worse than, for instance, in Chile, Argentina, or Paraguay,
but because those three countries ratified the OP much later, only in the 1990s.
The Committee deals with human rights issues in both rich and poor
countries, democratic and undemocratic. Examples of states against which complaints
have been lodged are Canada, Argentine, Uruguay, the Netherlands, Zambia, and
Georgia. The subject matter varies considerably as well. The Committee has ruled
about issues ranging from freedom of speech and religion, the right to be issued a
passport, the right to equality to the issue of disappearances. Many cases have dealt
with the right to a fair trial or detention issues. Before we get to that, however, I will
explain the individual complaint procedure a little more in depth.
Procedure. Bringing a case (an individual complaint) before the Committee is
only possible if the state against which the complaint is directed has pre-committed
itself to the individual complaint procedure under the first Optional Protocol to the
ICCPR. Moreover, individuals claiming a violation of their human rights before the
Human Rights Committee can do this only after they have exhausted domestic
remedies. In other words, they must first try and get redress before the courts of the
country against which they are bringing a claim. This way, the State in question is
able to resolve and remedy the situation before it ends up at the international level.
Only when domestic remedies have been exhausted or when no effective remedies are
available, victims of human rights violations may resort to the Committee to find
redress, for instance for unacceptable conditions of detention or for cruel treatment.
7

State parties have also committed to report states of emergency and explain the possible limitations
on rights in this context. Certain rights, such as the prohibition of torture and inhuman treatment,
cannot be derogated from (Article 4 ICCPR).
84

Victims initiate such a complaint by writing a letter to the Committee's

Secretariat in Geneva. When the letter contains insufficient information, the
Secretariat specifies to the applicant/author the additional information necessary for
the registration of the complaint. The applicants do not need to travel to Geneva as
the procedure is conducted entirely in writing. Both the applicant and the respondent
state have the opportunity to respond to each other's submissions: it is a adversary
procedure based on equality of arms.
The parties must comply with certain procedural requirements. The
Committee has denied many claims as prima facie unsubstantiated. It has denied
other claims because the facts complained of occurred before the ICCPR entered into
force for the State in question. A complaint is also declared inadmissible if it is not
based on any provision of the Covenant or is even contrary to the Covenant or if it
includes insulting language to the State concerned.
For many individuals the Committee is the first (quasi-) judicial body dealing
with their complaint about violations of Covenant provisions, as these were never
properly addressed before domestic courts. In other cases domestic courts may have
been uncertain about the proper interpretation of certain provisions. In such situations
the Committee can provide the necessary clarifications.
In cases where a violation was found, Committee decisions sometimes have
contributed to changes in legislation and practice and induced some states to award
monetary damages (although often only ex gratia, in other words: without an
admission of guilt). In other cases its decisions resulted in commutation of death
sentences. If nothing else, all findings of violations have at least provided victims
with moral vindication and may provide ingredients for future improvements in the
human rights situation in the state involved as well as in other states.
2. Human Rights Committee Case Law on Prison Issues
The importance of international law on ill treatment in prison

Stefan Verwey in: Tekenend voor Amnesty, Amsterdam December 1982

Especially under dictatorial regimes, detainees are often seen as enemies of

the state, dangerous abstractions, not really people. This becomes part of a process of
dehumanisation facilitating the use of ill treatment and torture. When this, in turn,
becomes a routine it is questioned less. This trend is also looming in many semianonymous high-tech societies. There are certain verbs that come to mind here:
85

mechanise, protocolise, medicalise, routinise, normalise. This process is also shown

by research about perpetrators of torture. Normal people are educated to become
torturers through mechanisms of abstraction, obedience, and routine.8 Rules against
torture and inhuman or degrading treatment or punishment are meant to counter this
attitude. This is also why freedom of speech is of special importance in the context of
detention, in particular in the form of the right to complain about treatment.

Yrrah in: Tekenend voor Amnesty, Amsterdam December 1982

Detained persons are by definition in a very vulnerable position vis--vis the

State. For whatever reason they are detained (for political reasons or for common
crimes, on the basis of a fair trial or not, convicted or in pre-trial detention, as an
asylum seeker or in a psychiatric hospital) once detained they are powerless. Thus,
this is a group that requires extra protection against abuse of power. Apart from being
especially vulnerable by virtue of being detained, detainees generally are an
unpopular political cause as well. Consideration of their rights is not normally
included in the political process. This, again, warrants special judicial protection.
The ICCPR and prison issues. Certain rights necessarily are limited as a
consequence of detention. Detained persons do, however, retain basic rights. Given
the time constraints, I will only discuss two provisions of the Covenant: the
prohibition against torture and other ill treatment and the right to a humane treatment
in detention.
The prohibition of torture and other ill treatment. The Committee has had to
deal with cases of torture committed by state authorities in violation of international
and domestic law. It has also pronounced itself on forms of ill treatment, such as
corporal punishment, that may be legal in some countries, but are not allowed under
the Convention.9
8

See e.g. H. C. Kelman, Crimes of obedience, Yale Univ. Press, New Haven, London, 1989; R. D.
Crelinsten & A. P. Schmidt (eds.), The politics of pain, West View 1995.
9
See Human Rights Committee, General Comment 20,1992 (paragraph 5), 04/03/92 at A/47/40
(1992). See also Osbourne v. Jamaica,15 March 2000, CCPR/C/68/ 759/97. Other international bodies
86

Article 7 ICCPR provides:

No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without his
free consent to medical or scientific experimentation.
The following cases are examples where a violation of Article 7 was found. In
one case the applicant was severely beaten by warders. Moreover, his belongings
were burnt, including letters from his lawyers, a trial transcript and a copy of his
petition to the Privy Council.10
In another case the applicants were beaten unconscious. These beatings
resulted in a fractured arm and other injuries. They were then left without medical
attention for almost a day and one of the applicants was later warned against further
pursuing his complaint to the judicial authorities. The Committee determined that this
was an aggravating factor.11
In yet another case, the Committee described the following situations: that
later, in the corridor, the author was stripped of his clothes, beaten, stabbed with a
knife and hit with a metal detector. A warder, whom the author had mentioned by
name, allegedly told the soldiers to kill the author. The items the author had in his cell
were destroyed, and his clothes and sleeping mat were drenched with water. The
author was then locked away without receiving any medical treatment. Afterwards he
complained to the Parliamentary Ombudsman by letter of 9 July 1988, to which he
received no reply. The Committee found violations of Article 7 and 10.12
A last example, dealing with the use of torture, is a case against the former
Soviet republic of Georgia. In this case the Committee found the state responsible for
severe beatings and physical and moral pressure. This included concussion and
broken bones, wounding and burning, scarring, torture and threats to family.13 At
least in these cases the states concerned had acknowledged the individual right to
complain to the Human Rights Committee. In other states similar violations of the
ICCPR may take place, but without this possibility.14
Psychological torture. In the aforementioned case, the Committee found
violations of the ICCPR, among others, for threats to the family of at least one of the
applicants. It is acknowledged internationally that not only physical treatment can
amount to torture and ill treatment, but also psychological pressure. As Professor
Rodley explains in his standard work on the treatment of prisoners in international
law, psychological torture is more sophisticated than physical torture in that it leaves
little physical trace. Examples of psychological torture are: deprivation of light,
deprivation of darkness, deprivation of sound or sleep, general disorientation, threats
have confirmed this approach: "Corporal punishment, including of children, can amount to cruel,
inhuman or degrading punishment or even to torture." (UN Commission on Human Rights, Resolution
2000/43, adopted 20 April 2000) and: "Corporal punishment is inconsistent with the provision of
torture and other cruel, inhuman or degrading treatment or punishment." (UN Special Rapporteur on
torture, Annual Report 1997).
10
McTaggart v Jamaica, 31 March 1998, CCPR/C/62/D/749/1997, 3 June 1998.
11
Randolph Barrett and Clyde Sutcliffe v. Jamaica, 30 March 1992, CCPR/C/44/D/270/1988 and
271/1988, 6 April 1992.
12
Irvine Reynolds v. Jamaica, 3 April 1997, CCPR/C/59/D/587/1994, 24 April 1997.
13
Victor Domukovsky, Zaza Tsiklauri, Petre Gelbakhiani and Irakli Dokvadze v. Georgia, 6 April
1998, CCPR/C/62/D/623/1995, 624/1995, 626/1995 and 626/1995 and 627/1995, 29 May 1998. The
decisions of the Human Rights Committee can be found at the UNHCHR treaty body database:
http://www.unhchr.ch/tbs/doc.nsf . They can be searched at http://sim.law.uu.nl
or
http://www1.umn.edu/humanrts/localsearch.html.
14
Jamaica has since rescinded its recognition of the first Optional Protocol (see infra).
87

of mutilation or death, mock execution and, of course, the threat that physical abuses
will be extended to persons close to the prisoner.15
Humane conditions of detention

Stefan Verwey in: Tekenend voor Amnesty, Amsterdam December 1982

This picture illustrates the importance of individual complaint about prison

conditions. Of course it is also a very good illustration of the importance of
organisations, such as the Comit europen pour la Prvention de la Torture (CPT)16
of the Council of Europe, that try and look behind the cardboard and talk with those
in detention.
Article 10 ICCPR provides:
1. All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
2. (a) Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons and shall be subject to separate treatment
appropriate to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as
speedy as possible for adjudication.
15

N. Rodley, The treatment of prisoners in international law, 1999 (2nd ed.), p. 10. It is troubling to
note that prisoners in the US cannot appeal to even a domestic Court when they are subjected to
psychological torture (Prison Litigation Reform Act (1996)). See e.g. M. Tushnet and L. Yackle,
Symbolic statutes and real laws: the pathologies of the Antiterrorism and Effective Death Penalty Act
and the Prison Litigation Reform Act, in: 47 Duke Law Journal 1-86 (1997) and J.E. Robertson,
Psychological injury and the Prison Litigation Reform Act: A Not exactly equal protection analysis,
37 Harvard Journal on Legislation 105-158 (2000).
16
CPT is the European prison visiting committee established under the European Convention against
Torture as discussed by Committee member Rudolf Schmuck yesterday, see:
http://www.cpt.coe.int/en/default.htm.
88

3. The penitentiary system shall comprise treatment of prisoners the essential

aim of which shall be their reformation and social rehabilitation. Juvenile
offenders shall be segregated from adults and be accorded treatment
appropriate to their age and legal status.
The Committee has said that Article 10 (1) complements Article 7. It ensures
that a person in detention may not be subjected to 'any hardship or constraint other
than that resulting from the deprivation of liberty'. The Committee noted as well that
'respect for the dignity of such persons must be guaranteed under the same conditions
as that for free persons.'17
When examining the Committee's case law in relation to Articles 7 and 10, it
becomes clear that the Committee often found a violation of both Articles without
making a clear distinction. In those cases it found inhumane treatment that was so
serious that it also fell under the prohibition of ill treatment in Article 7. However,
there have been some cases that dealt with Article 10 (1) on its own without also
finding a violation of Article 7.
In Ambrosini v Uruguay the Committee found that prolonged incommunicado
detention violated paragraph 1 of Article 10.18 A few years later, in a case against
Panama, it determined that the applicant's detention in a special cell with a mentally
disturbed prisoner violated Article 10 paragraph 1.19
Moreover, in a case against Hungary the Committee found that limiting
exercise and hygiene periods to five minutes a day violated paragraph 120
As a last example, in Yasseen and Thomas v. Guyana21 detainees were
required to share mattresses and were deprived of natural lighting except for their one
hour of daily recreation. This constituted a violation of Article 10 paragraph 1.
The main message of paragraph 3 of Article 10 is that no penitentiary system
should be merely retributory'. Each penitentiary system should 'essentially seek the
reformation and social rehabilitation of the prisoner'.22 In this respect, when
examining State reports, the Committee expects to receive information on work and
education programmes and post release programmes.
Just like the UN Standard Minimum Rules for the Treatment of Prisoners,23
Article 10 ICCPR sets some very basic minimum standards that fall below, for
instance, those of the Committee to the European Convention against Torture. These
17

Human Rights Committee, General Comment 21, 04/03/92, in A/47/40 (1992).

Moriana Hernandez Valentini de Bazzano (on her own behalf, as well as on behalf of her husband,
her stepfather and her mother) v. Uruguay ( Ambrosini was one of the victims), 15 August 1979,
5/1977, in A/34/40 (1979) or CCPR/C/OP/1, p. 37; see also HRLJ 1980, 209.
19
Wolf v. Panama, 26 March 1992, 289/1988, A/47/40 (1992).
20
Parkanyi v. Hungary, 27 July 1992, 410/1990, A/47/40 (1992), see also HRLJ 1992, 345.
21
Abdool Saleem Yasseen and Noel Thomas v. Republic of Guyana, 30 March 1998,
CCPR/C/62/D/676/1996, 7 may 1998.
22
Human Rights Committee, General Comment 21.
23
Standard Minimum Rules for the Treatment of Prisoners (resolution 1955/1977 adopted by the First
United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 30 August 1955;
approved by United Nations Economic and Social Council resolution 663 C (XXIV) of 31 July 1957;
and amended by ECOSOC resolution 2076 (LXII) of 13 May 1977) (a new rule 95 was added). See
also: Body of Principles for the Protection of All Persons under any form of Detention or
Imprisonment, adopted by the General Assembly, 9 December 1988, Resolution 43/173; Principles of
Medical Ethics relevant to the role of Health Personnel, particularly Physicians, in the protection of
prisoners and detainees against torture and other cruel, inhuman or degrading treatment or punishment,
Adopted by the General Assembly of the United Nations on 18 December 1982, resolution 37/194;
Code of Conduct for Law Enforcement Officials, adopted by United Nations General Assembly
resolution 34/169 of 17 December 1979.
89
18

minimum standards must be safeguarded regardless of a State partys level of

development. This means that 'lack of resources' is no excuse. In a case against
Cameroon, the Committee also referred to the aforementioned Standard Minimum
Rules for the Treatment of Prisoners:
'It should be noted that these are minimum requirements which the Committee
considers should always be observed, even if economic or budgetary
conditions may make compliance with these obligations difficult.24
Other International Bodies. Apart from the Human Rights Committee, several
other international bodies (such as the Committee against Torture supervising the UN
Convention Against Torture and Cruel, Inhuman or Degrading Treatment or
Punishment), as well as regional bodies, have issued decisions and judgements in
cases of ill treatment and torture.
On the assumption that most readers are familiar with the case law of the
Inter-American Commission25 and the Inter-American Court of Human Rights26
(operating from Washington DC and San Jose, Costa Rica respectively) and that of
the European Court on Human Rights27 (operating from Strasbourg), I will only
mention one decision by the African Commission on human rights, supervising the
African Charter on Human and Peoples Rights/Banjul Charter. In 1994, the African
Commission dealt with a complaint about the ill treatment and punishment by the
former Banda regime (Malawi) of Vera and Orton Chirwa. Amnesty International had
also adopted the couple as prisoners of conscience. The Commission noted that their
ill treatment for disciplinary reasons included "reduction in diet, chaining for two
days of the arms and legs with no access to sanitary facilities, detention in a dark cell
without access to natural light, water or food, forced nudity, and beatings with sticks
and iron bars." It concluded that these were examples of torture, cruel and degrading
punishment and treatment. Jointly and separately they clearly constituted a violation
of Article 5 of the African Charter. Article 5 provides:
"All forms of () torture, cruel, inhuman or degrading punishment and treatment
shall be prohibited."
The Commission also noted that this and other complaints it had received
against Malawi all described general prison conditions including "shackling of hands
in the cell so that the prisoner is unable to move (sometimes during the night and
day), serving of rotten food, solitary confinement, or overcrowding such that cells for
70 people are occupied by up to 200." It concluded:
"Such conditions offend the dignity of the person and violate Article 5 of the
Charter. In addition, the inability of prisoners to leave their cells for up to 14
hours at a time, lack of organised sports, lack of medical treatment, poor
sanitary conditions and lack of access to visitors, post and reading material are
all violations of Article 5." 28
3. Death row phenomenon
24

Albert Womah Mukong v. Cameroon, 8 July 1992,CCPR/C/458/1991, 21 July 1994.

http://www.cidh.oas.org/
26
http://www.corteidh.or.cr/
27
http://www.echr.coe.int/.
28
K. Achutan on behalf of A. Banda (64/92), Amnesty International on behalf of Orton and Vera
Chirwa (68/92 and 78/92) v. Malawi, 16th Session, Banjul, the Gambia, October/November 1994, Law
Reports of the African Commission Series A, vol. 1, ACHPR/LR/A/1, Banjul, 1996, see the African
Human Rights Database of the University of Pretoria, www.up.ac.za/chr/ahrdb/acomm_decisions.html.
25

90

Introduction One distinct type of cases that has been before the Human
Rights Committee relates to the so-called death row phenomenon and the prohibition
against cruel, inhuman or degrading treatment or punishment.
After a short overview of what the death row phenomenon might be, I will
briefly discuss the approach the Human Rights Committee has taken to this issue, as
well as the approach of the ECHR and a domestic body, the Supreme Court of
Zimbabwe. In passing, the approach of the Judicial Committee of the Privy Council
is mentioned as well.
3.1 What is the death row phenomenon?

Yrrah in: Amnesty International, Tekenend voor Amnesty, Amsterdam December 1982

We may take as an example the issue of remedying the harm done to a

wrongfully convicted person. When someone has been wrongfully convicted and
sentenced to death, even if he is not executed, irreparable harm has been done. It is
easier to compensate for wrongful imprisonment than it is to compensate someone
who has been wrongfully sentenced to death and has awaited execution. Here, added
to the lost years, is the fear and dehumanisation inflicted upon that person. It may be
a type of harm that a society may not inflict in any case, regardless of doubts about
innocence.
Already in 1972, in a Note by the Iowa Law Review, an analogy was made
between the death row phenomenon and the facts decided upon in the US case of
Trop v. Dulles,29 concluding that it is unconstitutionally cruel to impose upon
individuals mental suffering of sufficient intensity to violate their human dignity, as
an enlightened society's standard of decency incorporates and defines that term."30
The Note refers to research manifesting the use of defence mechanisms by
condemned prisoners, mechanisms that tend to be invoked under conditions of severe
anguish and dehumanisation. Someone on death row, like someone made stateless, is
29

356 U.S. 86, 101 (1958).

Note, Mental suffering under sentence of death: a cruel and unusual punishment, 57 Iowa Law
Review 814 (1972), at 823.
91
30

subjected to a threat sufficiently dire to cause intense fear, distress, and very likely
the virtual destruction of the personality. It concluded that
"(f)orcing human beings to exist in a psychological environment created by
defence mechanisms and forcing complete capitulation to fear in the very face
of death surely violate the concept of human dignity as defined by the most
callous societal standard. Such punishment exceeds the Trop standard of
uncivilized treatment. This unacceptable treatment of the condemned
prisoner is exacerbated by the increasingly long duration between sentence
and execution."31
Other authors wrote that every death row serves the "common goal of minimal human
storage, a goal that dictates an austere world in which condemned prisoners are
treated as bodies kept alive to be killed."32
The following three examples illustrate some aspects of what the death row
phenomenon might be.
"Tomorrow night one of my close friends is going to be killed in this gas
chamber...These officers just moved my friend to an empty cell. They call it the
Death Cell. There is nothing in it but a bed and a toilet. They keep a person there until
it's time to go in this gas chamber. Their reason for putting a person in an empty cell
is...they say they don't want anyone killing themself. That's real crazy! I feel so lonely
now."33
"We've spoken about the probability of this day coming but speaking about it
didn't and can't really prepare any of us for the actuality of its coming. We knew
months ago that this day could come but, now that it's here, I'm not prepared for it.
() There are many things one can do where repetition causes them to be routine.
Witnessing death, served up in such a cruel, callous and inhumane fashion, certainly
isn't one of the things that become routine as it increases. There are no words, Bro."34
Sakae Menda, acquitted after 32 years under sentence of death in Japan,
discusses the situation of someone else who was on death row. This also gives an
indication of the effect death row had on him:
(He) attended neither exercise nor prayers, and kept crying. Looking at him
closely, I was dragged into the fear of death more and more, so I could neither
eat nor sleep. Even when I did my exercises, I did not feel that my feet
stamped on the ground. I felt as if I were a living wax figure."35
3.2 The Human Rights Committee
Types of cases. The Human Rights Committee has discussed the death row
phenomenon in two types of cases. One relates to the situation where a claim was
filed against a State party intending to remove someone to a country where he or she
would likely be sentenced to death, as this triggers the responsibility of the sending
31

Note, supra note 29, at 830.

R. Johnson, J Carroll, Litigating death-row conditions: The case for reform, in PRISONERS AND
THE LAW (I. Robbins, ed. 1985) at 8-5. See also R. Johnson, Under sentence of death: the psychology
of death row confinement, 5 Law & Psychology Review 141 (1979).
33
An inmate on Mississippi's death row, writing about the impending execution of Leo Edwards, in: J
Arriens, Welcome to hell, letters and other writings by prisoners on death row in the United States,
1991, at 830.
34
Sam Johnson, on death row, Mississippi 1988, writing about the impending execution of Leo
Edwards, supra note 32, at 165.
35
Amnesty International, When the state kills the death penalty: a human rights issue, 1989, at 63.
92
32

state.36 The issue was not whether the claimant's rights had been or were likely to be
violated by the receiving State, which often is not a party to the Optional Protocol,
but whether the sending state would expose the claimant to a real risk of a violation of
his rights under the Covenant by extraditing him.
The other type of cases concerns claims filed by a person already sentenced to
death. These are claims against a State party still retaining the death penalty.
Although this usually involves issues of unfair trial, other claims have been made as
well, such as claims of ill treatment and inhumane detention conditions, including the
death row phenomenon.
Right to life. Article 6(1) of the ICCPR recognises the inherent right to life of
every human being. No one shall be arbitrarily deprived of his life. Paragraph 2
provides that in "those countries which have not abolished the death penalty" this
sentence may only be imposed under strict conditions in conformity with the
provisions of the ICCPR and only for the most serious crimes. The fourth paragraph
lays down the right of all persons sentenced to death to seek pardon or commutation.
It establishes that amnesty, pardon, or commutation may be granted in all cases. The
fifth paragraph forbids the death penalty for persons who were below the age of 18
when they committed a crime. Paragraph 6 emphasises that nothing in the Article
shall be invoked to delay or prevent the abolition of capital punishment.37
A contemporary interpretation of the prohibition of cruel treatment and the
right to life is evidenced in the Second Protocol abolishing the death penalty and in
decisions by national and international courts interpreting similar language.38 The
last 15 years an increasing number of countries have abolished the death penalty. At
the end of August 2001, 45 states had ratified the 2nd Optional Protocol. In June 2001,
75 states were abolitionist for all crimes, 14 for common crimes and at least 20 states
were abolitionist de facto (had not executed anyone for the last 10 years); 86 states
are retentionists.39
The general object and purpose of the ICCPR is to protect human dignity. The
Covenant is a living instrument, whose provisions are informed by contemporary
interpretations of the concepts they encompass.
It is clear from the text of Article 6 that, even at the time the Covenant was
formulated, the underlying goal was the abolition of the death penalty. This would
contribute most to respect for the right to life. This view is only enhanced by
subsequent developments, among which the adoption of the Second Optional
Protocol.

36

See e.g. Human Rights Committee, Kindler v. Canada, 30 July 1993, CCPR/C/48/D/470/1991, 11
November 1993. Other international bodies have also confirmed this responsibility, e.g.: ECHR,
Soering v. United Kingdom (see infra), as well as domestic Courts. Just like the ECHR the following
three courts not only confirmed this non-foulementprinciple, but also determined that removal
without assurances against the death penalty could not be allowed: Hoge Raad (Dutch Supreme Court)
30 maart 1990 RvdW 1990, 76, Nederlandse Jurisprudentie 1991, no. 249, March 30 1990 (Short case
of 30 March 1990); Canadian Supreme Court, United States v. Burns, 15 February 2001, 2001 SCC 7.
(The full text of the ruling is available at: http://www.lexum.umontreal.ca/cscscc/en/rec/html/burns1.en.html); South African Constitutional Court, Mohamed and another v.
President of Republic of South Africa and others, 28 May 2001, CCT 17/01 (2001).
37
See also the Human Rights Committee's General Comment on the Article: General Comment No. 6,
session 16 HRC, 3, 6 and 7, U.N. Doc. CCPR/C/21/Rev.1, pp. 4-5.
38
The abolition of the death penalty by the South African Constitutional Court is a case in point: S v
Makwanyane and Mchunu, 1995 (2) SACR 1 (CC).
39
Amnesty International, 1 June 2001, see www.amnesty.org.
93

The prohibition of ill treatment: a dilemma of interpretation. The Committee

takes the approach that the death row phenomenon does not violate the Covenant. It
emphasises that it
does not wish to convey the impression that keeping condemned prisoners on
death row for many years is an acceptable way of treating them. It is not.
However, the cruelty of the death row phenomenon is first and foremost a
function of the permissibility of capital punishment under the Covenant. This
situation has unfortunate consequences. 40
Thus far, the Committee has maintained that detention for a specific period of
time does not amount to a violation of Article 7 and 10 1 in the absence of some
further compelling circumstances. This would be so even in cases where this period
would be 11 years (or more). It did indicate that such stay on death row for a period
of more than 11 years was certainly a matter of serious concern. 41
The majority of the Human Rights Committee, while noting the evolution of
international law and the trend towards abolition, as illustrated by the adoption by the
United Nations General Assembly of the Second Optional Protocol to the ICCPR,
claims that capital punishment cannot per se be cruel, inhuman or degrading (Article
7), since Article 6, on the right to life, does not prohibit the death penalty. However,
Article 6(2), which is directed to those countries that have not yet abolished the death
penalty, is the exception, not the rule. The dilemma here is which choice to make
when a treatment would technically be condoned in light of one part of one Article
(Article 6(2) providing rules for those states that had not abolished the death penalty),
but otherwise is impermissible given the wording and jurisprudence on another
Article (Article 7, prohibition of torture and cruel treatment) in the same treaty. In
choosing between a contemporary interpretation of Article 7 and an extensive
interpretation of the exception to the rule (Article 6(2)), I believe priority should be
given to that interpretation which most respects human dignity.
The prohibition of ill treatment: a practical dilemma. There is, however,
another -very practical- dilemma faced by the Human Rights Committee. This relates
to the death row phenomenon, speeding up executions, and the right to fair trial.
In this respect the Committee believed that not only it should not fix the
maximum permissible period of detention on death row, but it should not make the
time factor per se the determining factor.
If the maximum accepted period is left open, states parties which seek to
avoid overstepping the deadline will be tempted to look to the decisions of the
Committee in the previous cases so as to determine what length of detention
on death row the Committee has found permissible in the past. 42
The Committee has stated several times that life on death row, harsh as it
may be, is preferable to death, a statement that was protested by some of its
members.43 It also referred to the fact that experience shows that delays in carrying
out the death penalty can be the necessary consequence of several factors, many of
which may be attributable to the State party. Sometimes a moratorium is placed on
execution while the whole question of the death penalty is under review. At other
times the executive branch of government delays executions even though it is not
feasible politically to abolish the death penalty. The Committee would wish to avoid
40

Ramcharan Bickaroo v. Trinidad and Tobago, 29 October 1997, CCPR/C/61/D/555/1993, 14

January 1998.
41
Errol Johnson v. Jamaica, 22 March 1996, CCPR/C/56/D/588/1994, 5 August 1996.
42
See e.g. Errol Johnson v. Jamaica, 22 March 1996, CCPR/C/56/D/588/1994, 5 August 1996.
43
Errol Johnson v. Jamaica, 22 March 1996, CCPR/C/56/D/588/1994, 5 August 1996.
94

adopting a line of jurisprudence which weakens the influence of factors that may very
well lessen the number of prisoners actually executed. 44
The Committee argued that the death row phenomenon could not violate the
prohibition of cruel treatment because if it would say so, it feared that prisoners
would be executed after unfair trials and appeals. Thus, it feared to provoke
executions by finding that the death row phenomenon violated Article 7.
The Judicial Committee of the Privy Council, a domestic judicial body dealing
with appeals from several Caribbean countries, took a different approach. It did find
that more than five years on death row (later it refined this time-period) indeed
triggered a death row phenomenon in violation of the Jamaican constitution.45 Several
years after this Privy Council decision, Jamaica, Trinidad and Tobago, and Guyana
withdrew from the first Optional Protocol to the ICCPR (individual complaint
procedure) exactly because they wished to execute prisoners in time, that is, within
the deadline set by the Privy Council.46 The Privy Council has since realised the
problem and it decided its death row phenomenon decisions are not to be used as an
excuse for executions in violation of the right to a fair trial. It has also emphasised the
importance of respecting decisions by international human rights bodies, such as
United Nations Human Rights Committee and the Inter-American Commission on
Human Rights, before a decision can be made to execute a condemned prisoner.47
In other words, this domestic body has now clarified that the death row
phenomenon violates the prohibition of cruel treatment. At the same time, however,
speeding up executions in disregard for the right to fair trial, and in disrespect for the
decisions of international bodies, violates the right to life. Both rights are nonderogable (they cannot be derogated from even during states of emergency)48 and
respect for one right cannot be used as an excuse to violate the other.
Ill-treatment on death row. So far the Human Rights Committee has not
found a death row phenomenon in violation of Article 7.49 In several instances, the
Committee did find violations of Article 7, but not for the death row phenomenon per
se.

44

See e.g. Errol Johnson v. Jamaica, 22 March 1996, CCPR/C/56/D/588/1994, 5 August 1996.
Pratt et al. v. Attorney General for Jamaica et al., [1993] 4 All.E.R. 769, [1993] 2 L.R.C. 349,
[1994] 2 A.C. 1, [1993] 3 W.L.R. 995, 43 W.I.R. 340, 14 H.R.L.J. 338, 33 I.L.M. 364 (J.C.P.C.).
46
Both Trinidad and Tobago and Guyana withdrew and re-entered with the reservation that everyone
under their jurisdiction had the right of individual petition to the Human Rights Committee-except
death row prisoners. Many states formally objected to this reservation as contrary to the object and
purpose of the Optional Protocol and the ICCPR. See: United Nations Treaty Collection, Declarations
and Reservations; Objections, at www.unhchr.ch/html/menu3/b/treaty6_asp.htm. Finding this
reservation illegal, the Human Rights Committee has since declared admissible a new complaint by a
death-row prisoner against Trinidad. In other words, it has confirmed that this type of reservation is
contrary to Protocol and Covenant. See: R. Kennedy v. Trinidad and Tobago, admissibility decision of
2 November 1999, 845/1999. As a result, Trinidad withdrew again. Since Guyana has not done this,
and its reservation is virtually the same (hence illegal) prisoners on death row in Guyana can still resort
to the Human Rights Committee.
47
Judicial Committee of the Privy Council, Lewis and others v. Attorney General of Jamaica, 12
September 2000, [2000] UKPC 34.
48
The limitations on the right to life (such as legitimate self-defence) are mentioned in the provision
itself (see e.g. art. 6 ICCPR), further derogations are not allowed (see art. 4 ICCPR).
49
Earl Pratt and Ivan Morgan v. Jamaica, 6 April 1989, CCPR/C/35/D/210/1986 and 225/1987, 7
April 1989, Kindler v. Canada, 30 July 1993, CCPR/C/48/D/470/1991, 11 November 1993.
95
45

It found for instance, that waiting almost 20 hours before informing prisoners
of a stay of execution and removing them from the death cell was a violation of art.
7.50
It also found violations of 7 and 10 para.1. in a case where the petitioner was
repeatedly taunted and threatened about his impending execution, in graphic detail.51
In another case, while on death row, the claimant had been subjected to a
mock execution in violation of Articles 7 and 10(1).52
Additionally, the Committee found a violation of Article 7 in a case of a
minor who was put on death row. His age, however, was not a factor in finding a
death row phenomenon in violation of Article 7. The imposition of the death sentence
itself was void ab initio and as such in violation of Article 7- because of the
violation of art, 6 par. 5 forbidding the death penalty for persons under 18 at the time
of the crime.53
An extremely limited death row phenomenon (if at all). In two cases the
Committee mentioned the relevance of the psychological impact of death row on the
person involved.
In Clement Francis v. Jamaica54 the Committee reaffirmed its jurisprudence
that prolonged delays, also if this meant as in this case- nearly 12 years on death row
in the execution of a death sentence do not per se constitute cruel, inhuman or
degrading treatment. It did, however, state:
each case must be considered on its own merits, bearing in mind the imputability of
delays in the administration of justice on the State party, the specific conditions of
imprisonment in the particular penitentiary and the psychological impact on the
person concerned.
In relation to the imputability to the State party of the lengthy time the author
had to spend on death row, the Committee found that the failure of the Jamaican
Court of Appeal to issue a written judgment over a period of more than 13 years,
despite repeated requests on behalf of Mr. Francis, must be attributed to the State
party. In the circumstances of this particular case, the Committee indeed found that
the death row phenomenon violated Articles 7 and 10(1).
Whereas the psychological tension created by prolonged detention on death
row may affect persons in different degrees, the evidence before the
Committee in this case, including the authors confused and incoherent
correspondence with the Committee, indicates that his mental health seriously
deteriorated during incarceration on death row. Taking into consideration the
authors description of the prison conditions, including his allegations about
regular beatings inflicted upon him by warders, as well as the ridicule and
strain to which he was subjected during the five days he spent in the death cell
awaiting execution in February 1988, which the State party has not effectively
contested, the Committee concludes that these circumstances reveal a
violation of Jamaicas obligations under Articles 7 and 10, paragraph 1, of the
Covenant.
The author was entitled to an effective remedy, including appropriate medical
treatment, compensation and consideration for an early release.
50

Earl Pratt and Ivan Morgan v. Jamaica, 6 April 1989, CCPR/C/35/D/210/1986 and 225/1987, 7
April 1989.
51
Dwayne Hylton v. Jamaica, 15 July 1994, CCPR/C/51/D/407/1990.
52
Linton v. Jamaica, 2 November 1992, CCPR/C/46/D/255/1987.
53
Clive Johnson v. Jamaica, 20 October 1998, CCPR/C/64/D/592/1994, 25 November 1998,
54
Clement Francis v. Jamaica, 606/1994, 25 July 1995.
96

The other case where the Committee mentions the psychological impact of
death row is Nathaniel Williams v. Jamaica55. The Committee first referred to its
usual jurisprudence on the death row phenomenon. It then stated that
[o]n the other hand, each case must be considered on its own merits, bearing
in mind the psychological impact of detention on death row on the convicted
prisoner.
The Committee referred to its decision in Clement Francis v. Jamaica56 of 25
July 1995. It found that the material before it indicated that the authors mental
condition seriously deteriorated during his incarceration on death row. This
conclusion is buttressed by the correspondence addressed to the Committee on the
authors behalf by other inmates on death row, and by the report prepared by Dr.
Irons on his examination of the author on 14 March 1992. It noted that the State
party had failed to investigate the authors state of mental health and to forward its
findings to the Committee despite its promise to do so, more than two years before. It
was, moreover, not apparent that the psychiatric examination which had been
scheduled for the author in September 1994 by the State partys Department of
Correctional Services has been carried out since that date. All these factors justify the
conclusion that the author did not receive any or received inadequate medical
treatment for his mental condition while detained on death row. The Committee
concluded that Articles 7 and 10(1) had been violated. At the time of the
Committees decision the author had been removed from death row, but he was still
suffering this mental condition. The Committee noted that in this case the requisite
remedy for the violation of article 7 and 10(1) included, in particular, an entitlement
to appropriate medical treatment.
In both cases the Committee did take into account the psychological impact of
detention on death row on the convicted prisoner. Still, it did not literally call this a
death row phenomenon, it just condemned the lack of adequate medical treatment
and called for appropriate medical treatment.57
3.3 The approach of the ECHR and the Zimbabwe Supreme Court, cause and effect
and the factors for finding death row phenomenon
This section briefly discusses the approach of the ECHR and the Zimbabwe
Supreme Court towards the death row phenomenon. It concludes with some
references to the various approaches to the cause of delay between sentence and
execution and with a chart of the possible relevant factors making up the death row
phenomenon.

The European Court on Human Rights (ECHR)

Types of cases. Under the ECHR normally only the first type of death penalty
case is relevant: that in relation to extradition requests and non-refoulement in cases
where no assurances are given that the death penalty will not be applied in the
55

Nathaniel Williams v. Jamaica, CCPR/C/61/D/609/1995, 17 November 1997.

Clement Francis v. Jamaica, 606/1994, 25 July 1995.
57
The difference in remedy between the two cases can be explained by the fact that in the Williams
case the Committee had also found a violation of article 14 par. 3 sub. c and par. 5 in relation to the
inordinate delay in issuing a note of oral judgment in his case.
97
56

recipient state. Of the original members of the Council of Europe, Turkey is the only
party to the ECHR that still retains the death penalty. For new states, abolition of the
death penalty is a precondition for membership. Recently the second type of case
(direct case of the death penalty) was relevant in a case against Turkey: in this case
the Court ordered Turkey not to execute calan during the proceedings before the
ECHR.
ECHR and the right to life In 1989, in the Soering case58, the Court
established that capital punishment under certain conditions is permitted by art. 2(1).
It acknowledged that subsequent practice could remove a textual limit on the scope
for dynamic or evolutive interpretation of Article 3. This is consonant with the
longstanding view that the Convention is a living instrument. However, the Court
used the 6th Protocol itself to establish that the Contracting Parties intended the
normal method of amendment of the text in order to introduce a new obligation to
abolish the death penalty. Therefore, it found that the death penalty itself was not a
violation of Article 3.
Protocol 6, however, was adopted to lay down and secure, and certainly not to
limit, the interpretation of Article 2 which, reflecting the contemporary standards of
justice in Europe, takes into account the subsequent practice and codification. As
Judge De Meyer stated in his concurring judgment: "When a person's right to life is
involved, no requested state can be entitled to allow a requesting state to do what the
requested state itself is not allowed to do." He found that the death penalty is not
consistent with the present state of European civilisation. "Extraditing somebody in
such circumstances," he said, "would be repugnant to European standards of justice,
and contrary to the public order of Europe."
In the present day circumstances it is likely that the majority of the European
Court would now conclude that the death penalty in itself is a cruel and inhuman
punishment. In 1989 the Court found instead that the death row phenomenon
constituted cruel treatment.
Cruel and degrading. As established in the Court's case law, ill treatment
must attain a minimum level of severity if it is to fall within the scope of article 3.59
The ECHR concluded that the circumstances relating to a death sentence could give
rise to an issue under article 3. It indicated that the manner in which the sentence is
imposed or executed, the personal circumstances of the condemned person and
disproportionality to the gravity of the crime committed, as well as the condition of
detention awaiting execution are examples.
"Present day attitudes in the Contracting States to capital punishment are
relevant for the assessment whether the acceptable threshold of suffering or
degradation has been exceeded."

58
59

Soering v. United Kingdom, Judgement of 7 July 1989, Series A, 161 (appl. no. 14038/88).

Ireland v. United Kingdom, Eur.Ct.Hum.Rts, Judgment of 13 Dec. 1977, Series A, no. 25; Tyrer v. United
Kingdom, Eur.Ct.Hum.Rts, Judgment of 25 April 1978,Series A, No.26 (the Court, referring to the convention as a
"living instrument" declared birching minors to be contrary to article 3 of the Convention). See in general: M.de
Salvia, L'laboration d'un "ius commune" des droits de l'homme et des liberts fondamentales dans la perspective
de l'unit europenne" l'oeuvre accomplie par la Commission et la Cour europennes des Droits de l'Homme
33,in: Protecting human rights: the European dimension, studies in honour of Gerard J. Wiarda (F. Matscher, H.
Petzold, eds., 2nd ed. 1990).

98

"(T)he source of the alleged inhuman and degrading treatment or punishment, namely
the `death row phenomenon,' lies in the imposition of the death penalty." It concluded
that extradition of Soering would result in a violation or article 3.
"Having regard to the very long period of time spent on death row in such
extreme conditions, with the ever present and mounting anguish of awaiting
execution of the death penalty, and to the personal circumstances of the
applicant, especially his age and mental state at the time of the offence, the
applicant's extradition to the US would expose him to real risk of treatment
going beyond the threshold set by art. 3. A further consideration of relevance
is that in the particular instance the legitimate purpose of extradition could be
achieved by another means which would not involve suffering of such
exceptional intensity or duration."
It noted, moreover:
However well-intentioned and even potentially beneficial is the provision of
the complex of post-sentence procedures in Virginia, the consequence is that
the condemned prisoner has to endure for many years the conditions on death
row and the anguish and mounting tension of living in the ever-present
shadow of death."
The strength of the wording used by the Court indicates the importance that
must be accorded to this factor. It seems Soering's youth and his mental state at the
time are only taken into account as contributory factors.60 They are not necessary to
establish that the death row phenomenon violates Article 3.61
Supreme Court of Zimbabwe. In June 1993 the Supreme Court of Zimbabwe
decided Catholic Commission for Justice and Peace in Zimbabwe v Attorney General
and Others. 62 In this case it repeated the view, earlier expressed in Ncube v State,
that the relevant Article in the Constitution of Zimbabwe represented nothing less
than the dignity of man.63
60

See M. Shea, Expanding judicial scrutiny of human rights in extradition cases, After Soering, 17
Yale J. Int.l L. 85 (1992) (convincingly arguing that the death row phenomenon, rather than the
specific facts in the case, was the main criterion in the Soering judgment); for a different approach
see: R.B. Lillich, Notes and Comments, The Soering case, 85 American Journal of International Law
128 (1991); see also J. Quigley, S.A. Shank, Death row as a violation of human rights: Is it illegal to
extradite to Virginia?, 30 VJIL 214 (1989).
61
As subsequent cases on removal to a death penalty state often were struck from the list or declared
inadmissible, they do not clarify the position of the Strasbourg organs, see e.g. Venezia v. Italy,
Appl.no. 29966/96, 21 October 1996 (struck out as domestic court had forbidden the extradition);
Aylor-Davis v. France, Application no. 22742/93 (inadmissible for lack of real risk of exposure to
death penalty, thanks to recipient state partys credible assurances against the death penalty) In such
cases involving possible removal to a death penalty state, the Commission always used provisional
measures to prevent the removal while the case was pending. However, this does not need to be linked
to the prevention of irreparable harm in the context of the death row phenomenon: all states involved
(except Turkey) have now ratified Protocol 6, meaning that the provisional measure could have been to
prevent irreparable harm to the right to life of the author. The fact that the Court used provisional
measures to prevent Turkey from executing calan may be more significant, as Turkey has not ratified
Protocol 6. The claims under Articles 2 (right to life) and 3 (prohibition of cruel treatment) have been
declared admissible: ECHR (first section), calan v. Turkey application no. 46221/99, 21 November
and 14 December 2000 (adm.decision).
62
Catholic Commission for Justice and Peace in Zimbabwe v. Attorney-General, Zimbabwe, et al.,
[1993] 4 S.A. 239 (Z.S.C.), [1993] 1 Z.L.R. 242 (S), also in:14 Human Rights Law Journal 323
(1994).
63
[1988] LRC (const) 442 at 460, 1987 (2) ZLR 246 at 267.
99

"It is a provision that embodies broad and idealistic notions of dignity,

humanity and decency. ... What might not have been regarded as inhuman
decades ago may be revolting to the new sensitivities which emerge as
civilisation advances."
The Chief Justice noted that the Court, in its interpretation of the constitution,
must take account of the contemporary norms operative in Zimbabwe and the
sensitivities of its people and also of the 'emerging consensus of values in the
civilised international community (of which this country is a part), as evidenced in the
decisions of other Courts and the writings of leading academics...'.
In assessing whether the delay would violate the Constitution the Court cited
the United States Supreme Court case Re Kemmler (1890), where it was accepted that
"(p)unishments are cruel when they involve ... a lingering death...something more
than the mere extinguishment of life."64 It argued that
"death is as lingering if a person spends several years in a death cell awaiting
execution, as if the mode of execution takes an unacceptably long time to kill
him. The pain of mental lingering can be as intense as the agony of physical
lingering."
It referred to legal scholarship, sociological studies and decisions by the
United States and the Indian Supreme Court, the Privy Council, the Canadian
Supreme Court, the European Court and the United Nations Human Rights
Committee. It referred to certain decisions of these domestic courts, and the ECHR,
not because these were precedents to which Zimbabwe would be formally bound, but
because of their persuasiveness. Consequently, in those decisions, it was not always
the majority-opinion that was cited.
Describing the death row phenomenon, Chief Justice Gubbay stated:
"(f)rom the moment he enters the condemned cell, the prisoner is enmeshed in
a dehumanising environment of near hopelessness. He is in a place where the
sole object is to preserve his life so that he may be executed."
The aftermath. As a result of the decision, the death sentences of fourteen
men were commuted to life imprisonment. However, the Attorney General of
Zimbabwe accused the Court of trying to usurp executive powers by commuting
sentences.65 President Mugabe said his government would amend the Constitution
and thereby prevent similar decisions in the future. This was done in 1993.The
Zimbabwean Constitution provides that its Articles can be amended by a two-thirds
majority. At the time the Governmental party was represented by 148 of the 150
members of parliament. This means there were only two opposition members, who
were elected purely along ethnic lines. This shows how extremely easy it is to amend
the Constitution. The practice of the Zimbabwean parliament to amend the
Constitution each time it does not like the Court's interpretation represents a basic
departure from the principles of the rule of law and it ignores the special position of
the Declaration of Rights as an especially entrenched part of the Constitution, which
recognises internationally accepted human rights norms.66 The South African and

64

136 US (1890) at 447.

Zimbabwe supplement chronology, Constitutions of the countries of the world 2 (A. Blaustein, G.
Flanz, eds., 1994).
66
Lecture Chief Justice Gubbay, Supreme Court of Zimbabwe, University of Virginia School of Law,
April 3, 1996.
100
65

Namibian Constitution both forbid amendments in so far as they retreat from

protecting human rights.67
Cause and effect. Another dilemma (related to the issue of fair trial) is that of
cause and effect.
The Human Rights Committee does attach importance to the question of what
caused the delay. It recalled its earlier jurisprudence on the death row phenomenon,
that "prolonged periods of detention under a severe custodial regime on death row
cannot generally be considered to constitute cruel, inhuman or degrading treatment if
the convicted person is merely availing himself of appellate remedies."68
The Committee noted again in Barrett and Sutcliffe v. Jamaica that an
element of delay between the lawful imposition of a death sentence and the
exhaustion of available remedies is inherent in the review of a death sentence.
Therefore even prolonged periods of detention under a severe custodial regime on
death row cannot generally be considered to constitute cruel, inhuman or degrading
treatment if the convicted person is merely availing himself of appellate remedies.69
Committee member Chanet noted in dissent: I consider that the author can not be
expected to hurry up in making appeals so he can be executed more rapidly.
The ECHR and the Zimbabwe Supreme Court take a different approach from
the majority of the Human Rights Committee. The European Court stated about the
long period of time on death row:
"just as some lapse of time between sentence and execution is inevitable if
appeal safeguards are to be provided to the condemned person, so it is equally
part of human nature that the person will cling to life by exploiting those
safeguards to the full.
The Supreme Court of Zimbabwe, like the European Court, considered the
likely effect of the delay to be the proper test, and not the cause of the delay. When
the sentence was death, the cause of the delay was immaterial, because the
dehumanising character of the delay was unaltered. Per curiam it was decided
"(i)t was highly artificial and unrealistic to discount the mental agony and torment
experienced on death row on the basis that the condemned prisoner could have
shortened his suffering by not making maximum use of the judicial process available.
The cause is irrelevant for it fails to lessen the degree of suffering of the condemned
person.70
In other words, just because a convicted person makes use of a constitutional
right for review of his case this does not make his stay on death row less cruel. The
fact that the prisoner clings to his life is only natural and cannot be used to argue that
the time-period spent in expectation of his execution does not subject him to cruel,
inhuman and degrading treatment. The prisoners only choice is between death and
death row.
Relevant factors for the death row phenomenon. The Human Rights
Committee interpreted the Soering decision of the European Court in a limited way,
67

As pointed out by Chief Justice Gubbay in his lecture at the University of Virginia School of Law, 3
April 1996.
68
See Earl Pratt and Ivan Morgan v. Jamaica, 30 March 1992, CCPR/C/35/D/210/1986 and 255/1987,
7 April 1989.
69
Randolph Barrett and Clyde Sutcliffe v. Jamaica, CCPR/C/44/D/270/1988 and 271/1988, 6 April
1992.
70
In approval, the Court cites Vatheeswaran v State of Tamil Nadu AIR [1983] SC 361, People v
Anderson 493 P 2nd 880 (1972), and the Soering case.
101

by emphasizing its discussion of the specific situation of applicant Soering over its
discussion of the death row phenomenon in general. In the case Kindler v. Canada,
for instance, it distinguished Kindler's situation from Soering's by stating that the
facts of the case differed as to age, mental state and conditions on death row (which
was in Pennsylvania, in Kindler's case, and in Virginia in Soering's). It also noted that
in the Soering case there was a simultaneous request for extradition by a state where
the death penalty would not be imposed.71
Different from the Human Rights Committee, the Judicial Committee of the
Privy Council and, even more so, the Zimbabwe Supreme Court did not attach great
importance to the special factors mentioned by the ECHR in Soering.
Individual
circumstances
e.g. age, mental
history
Circumstances in
detention e.g.
separate death row/
rigid regime
Awaiting execution
for extended period
Sentenced to death
and awaiting
execution

As you see on the chart, there are at least four levels at which the death row
phenomenon may come into play:
1. Being sentenced to death and waiting to be executed at a predetermined point
in time in a predetermined, often routinised and medicalised manner in itself
triggers the death row phenomenon.
2. The length of the wait (days/5 years/18 years/32 years?) triggers it.72
3. The circumstances of the wait, such as a separate death row and a rigid
regime, trigger the death row phenomenon.73
4. Individual circumstances such as age, mental history etc.
At present, the Human Rights Committee may be located at the very end of
level four, while in 1989 the ECHR could be located at level two (according to some
71

Kindler v. Canada, 30 July 1993, CCPR/C/48/D/470/1991, 11 November 1993.

In the case S v. Makwanyane and Mchunu of the Constitutional Court of South Africa, 1995 (2)
SACR 1 (CC), Justice Kentridge, for instance, has said: "the mental agony of the criminal, in its
alternation of fear, hope and despair must be present even when the time between sentence and
execution is measured in months or weeks rather than years."
73
Here in Missouri persons sentenced to death are incarcerated together with other long-term
prisoners, rather than on a separate death row, see: G. Lombardi, R. Sluder & D. Wallace,
Mainstreaming Death-Sentenced Inmates: The Missouri Experience and Its Legal Significance, 61(2)
Federal Probation 3 (1997), 2-11. If it would be the physical circumstance of a separate death row
alone that would trigger the death row phenomenon, Missouri would not produce it.
102
72

at levels three or four). It is unclear where exactly the present ECHR would be
located, but it would likely be somewhere closer to level one. The Privy Council and
the Zimbabwe Supreme Court can be located at level two, quite close to level one. If
step one triggers the death row phenomenon, the other steps (the length of the wait,
the circumstances on a specific death row and personal factors) simply show types of
aggravation. If another step triggers the death row phenomenon, the types of
aggravation simply decrease.
Conclusion
The three parts of this presentation may be summarised as follows.
International supervision is very important for the protection of basic human rights
such as the right not to be tortured and the right to a fair trial. Persons in detention,
for whatever reason they are detained, are especially vulnerable. Not only must they
not be tortured, but they must also be treated in a humane manner.
The case law of the Human Rights Committee gives a worthwhile
contribution to the universal respect for human rights. It has dealt with countries
where mass violations of basic human rights took place, such as the right not to be
tortured and not to be disappeared. It has dealt with the right to fair trial and the
freedom of speech and religion. And it has also dealt with prison issues. Through its
case law, its comments on State reports and its General Comments on Articles 7 and
10, it has indicated a certain baseline below which treatment of detainees may not
fall. The Covenant does not allow for any excuse for ill treatment, physical or
psychological torture.
On the issue of the death row phenomenon the Human Rights Committee, so
far, has operated extremely cautiously. If at all, it has only found a "death row
phenomenon" in two cases of very extreme psychiatric circumstances. Although it
often found a violation of articles 7 and 10 in connection with the circumstances on
death row, it normally did not find that the 'death row phenomenon' in itself violated
article 7.
The interpretations by the European Court and by several domestic courts,
such as the Privy Council and the Supreme Court of Zimbabwe have been more
dynamic. These bodies found violations of the prohibition of cruel treatment in
connection with the death row phenomenon itself.
What all those bodies have in common is their emphasis on the basic rights
and dignity of each person, including those in detention.

103

AGE AND CRIMINAL RESPONSIBILITY

Frances Reddington1
Introduction

his paper examines the concept of age and its impact on criminal
responsibility. Topics covered include age and original juvenile court
jurisdiction in the United States, age of transfer to criminal court in the
United States, and sanctions available for youth transferred to criminal
court jurisdiction. In addition, this presentation will briefly examine an overview of other
countries approaches to the question of age and criminal responsibility.
When examining the issue of young offenders, there are three distinct concepts that
must be addressed. These are:
1) When should someone hold no criminal responsibility because of age?
2) When should someone have special consideration, or hold diminished criminal
responsibility because of age? At what age should someone have that diminished
responsibility disregarded and be sent to adult criminal court?
3) At what age should someone hold full adult criminal responsibility for his/her
actions?
In other words, at what age does someone become a child, at what age does
someone become an adult, and at what age can someone be transferred into the criminal
court jurisdiction when accused of breaking the law?
Larger Issue
While not easy questions to answer, they are of universal concern. In addition, the
answers to these questions greatly impact the legal approaches taken to children who
commit crimes. This paper will briefly examine how various countries have answered
these questions.
A Universal Approach
In November of 1959, the United Nations Declaration of the Rights of the Child
was adopted. This declaration held ten principles that created a framework for the
universal rights of children (Office of the High Commissioner for Human Rights, n.d.). In
1989, the United Nations created the Convention of the Rights of the Child. This is an
international treaty that recognizes the human rights of children, defined as persons up to
the age of 18 years, unless national laws state that age as younger than 18 (The UN
Convention on the Rights of the Child, n.d.). Other important points of the treaty suggest
that Capital punishment or life imprisonment shall not be imposed for crimes committed
before the age of 18. Children in detention should be

Copyright 2002 Frances Reddington, published here by permission. Correspondence should be addressed to
author, Department of Criminal Justice, Central Missouri State University, Warrensburg, MO, USA 64093.

105

separated from adults; they must not be tortured or suffer cruel or degrading treatment
(The UN Convention on the Rights of the Child, n.d.).
The Convention for the Rights of the Child has since been ratified by all but two
member countries. The United States is one of those countries. The United States signed
the treaty in 1995, yet has not ratified the treaty. According to the web site Convention on
the Rights of the Child, n.d. as in many other nations, the United States undertakes an
extensive examination and scrutiny of treaties before proceeding to ratify. This
examination, which includes an evaluation of the degree of compliance with existing law
and practice in the country at state and federal levels can take several years or even
longer if the treaty is portrayed as being controversial or the process is politicized.
Age of Criminal Responsibility and the United States Approach
First, this paper will examine how the issue of age and its impact on criminal
responsibility is addressed in the United States. In order to do so, however, we must first
start with an examination of the early English Common law. The United States based
much of its early approach to juveniles who violated the law on English Common Law.
Under English Common Law, while there was no separate juvenile justice system,
children aged 6 and younger were thought to be incapable of committing a crime regardless of their actions - because of their age. It was believed that they knew neither
right from wrong nor understood the consequences of their actions. Children ages seven to
14 were also considered incapable of criminal intent unless it could be demonstrated that
the individual child in question possessed criminal intent. Older children, ages 15 and
above, were considered to hold full criminal responsibility for their acts (Short, 1990).
These common law tenets followed the settlers to America, and youthful offenders
were handled under these mandates. There was no separate juvenile system in the United
States and whether a youth was sanctioned in the criminal justice system was determined
by their age and whether they held criminal intent. It was not until the 1800s the juvenile
misbehavior raised public concern and brought significant numbers of children into the
prisons where they were housed with adult offenders (Kelling, 1987). For sixty years,
reformers addressed this concern by initiating new ways to deal with juvenile offenders,
most notable was the concept of removing the most salvageable of the children into
facilities designed to house only children (Fox, 1970).
The reformers efforts eventually culminated in the creation of the first Juvenile
Court in Cook County, Illinois, in 1899. According to the Juvenile Court Act, the court
held jurisdiction for those youth under the age of 16. While there appears to be no lower
age limit set for court jurisdiction, juveniles younger than 10 could not be placed in
juvenile reformatories, and juveniles younger than 12 could not be placed in adult jails and
prisons (Siegel and Senna, 2000).

106

Juvenile Court Original Jurisdiction Today

As each state created their juvenile courts and initiated their juvenile court
statutes, they addressed the issue of age with respect to illegal conduct. Ages for no
criminal intent, diminished criminal intent, and full criminal intent were varied. In essence,
there are 51 separate juvenile justice systems in the United States today. In the United
States 36 states specify no lowest age for original juvenile court jurisdiction. Someone
becomes a child by legal definition, and can be handled in juvenile court, theoretically,
immediately after birth. Eleven states specify that someone becomes a child at age 10;
three states specify age 7; one state specifies age 6, and one state specifies age 8 (Snyder
and Sickmund, 1999). In these states the child had no criminal responsibility, even
diminished responsibility as a juvenile, until they reach the age specified in the juvenile
statutes.
Age at which juvenile court jurisdiction for illegal acts ends also varies in the
United States. The most common age for full adult criminal responsibility is 18 years old,
though some states vary that age to 16 or 17 (Torbet et al, 2000).
Transferring Youth to the Criminal Courts System
What was not varied in the states approaches to juvenile offenders was the fact that
each state left a safety valve in its court jurisdiction - juveniles could be sent to the adult
system. The issue of transferring children to the criminal court was addressed by the
Supreme Court in 1966 in Kent v. US. The court held that juveniles who faced transfer to
the juvenile system must be given a hearing regarding fitness of transfer, must be given
representation by an attorney, and must be provided a statement of the reasons for the
transfer (del Carmen et al, 1998). Among areas for the juvenile court judge to examine in
the transfer hearing was sophistication and maturity of the juvenile (Kent v. US, 1966).
By the late 1980s and into the 1990s concerns about a rising juvenile crime rate
and articles depicting the juvenile super-predator of the future led the media, the public
and the legislatures to examine the current approach to getting juveniles into the adult
criminal courts (Feld, 1999). Concerned by juvenile judges who apparently wanted to keep
juveniles in the juvenile justice system, legislators created new ways of transferring
juveniles into the adult system (Feld. 1999). Prosecutors, in many states were given the
transfer decision, and in many states legislative changes to the juvenile code redefined
delinquent acts as criminal acts, as well as reconfigured age criteria for transfer. In the
early 1990s, 44 states and the District of Columbia changed their transfer laws so that it
was easier to transfer more and younger juvenile offenders into the adult system (Snyder
and Sickmund, 1999). Presently, every state and the District of Columbia allow adult
criminal prosecution of juveniles under some circumstances.
An examination of all types of transfer mechanisms used in the states that cite the
minimum age of transfer found in any one transfer process, demonstrates the following:
twenty-three states specify no lower age limit for transfer to adult criminal court; two
states list the minimum transfer age as 10; three states list the minimum transfer age as 12;
six states list the minimum transfer age at 13; sixteen states list

107

the minimum transfer age at 14; and, one state lists the minimum transfer age at 16 (Snyder
and Sickmund, 1999)
Throughout the United States juveniles transferred into the adult system face all
adult sanctions, except for the death penalty, unless they were at least 16 years old at the
time of the crime. Some juveniles are sent to adult prisons. In 1996, nearly 2% of all new
court commitments to prison were youth under the age of 18. That number represents
approximately 5600 youth (Snyder and Sickmund, 1999). The majority of those under
age 18 sent to prison were male, minority, and almost 75% were 17 years old (Snyder and
Sickmund, 1999). Research continues to suggest that youth held in adult facilities
recidivate faster, more seriously, and more frequently than those held in juvenile
institutions (Fagan, 1991; see also Bishop et al., 1996; Winner et al., 1997; Juvenile Justice
Digest, 2001).
International View of Juveniles and Consideration of Age and Criminal Responsibility
Appendix 1 below, compiled from various sources, which examines a number of
countries and their age of no criminal responsibility, age of special consideration (or
juvenile court jurisdiction if applicable) and the age of adult criminal responsibility
(Department of Justice, 1993; Fields and Moore, 1996; Terrill, 1999).
As a note, a recent article about juvenile crime in Hong Kong stated that the
juvenile crime rate in Hong Kong is much higher than in China, lower than in the U.S. and
somewhat lower than in Japan. However, juvenile crime constitutes a major concern in
Hong Kong as juvenile crime rates account for 45% of all crime in Hong Kong (Wong,
2000).
Conclusion
In conclusion, it is evident that the concepts of age and criminal responsibility,
juvenile court jurisdiction and the process of transferring juvenile court jurisdiction to the
adult criminal court systems raise questions of universal concern and demonstrate some
universal disagreement. These issues and how countries handle them are of major legal
and societal concern. How we treat our children, including those who break our laws
reflects significantly on our individual and universal society.

108

References
Bishop, D., Frazier, C., Lanza-Kaduce, L., and White, H. (1996). The transfer of juveniles to criminal court:
Does it make a difference? Crime and Delinquency 42:171-191. In Snyder, Howard (2000) Juvenile
transfers to criminal court in the 1990s: Lessons learned from four states. Washington, DC: U.S.
Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency
Prevention.
Convention on the Rights of the Child (n.d.) Frequently asked questions. P.1.
www.unicef.org/crc/faq.htm3009
Del Carmen, Rolando, Parker, Mary and Reddington, Frances P. (1998). Briefs of leading cases in juvenile
justice. Anderson Publishing.
Department of Justice. (1993). The world fact-book of criminal justice systems. U.S. Department of Justice,
Bureau of Justice Statistics. www.ojp.usdoj.gov/bjs/abstract/wfcj.htm#abstract
Fagan, J. (1991). The comparative impacts of juvenile and criminal court sanctions on adolescent offenders.
Report. Washington, DC: U.S. Department of Justice, Office of Justice Programs, National Institute of
Justice. In Snyder, Howard (2000) Juvenile transfers to criminal court in the 1990s: Lessons learned
from four states. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of
Juvenile Justice and Delinquency Prevention.
Feld, Barry C.(1999). Bad kids: Race and the transformation of the juvenile court. Oxford.
Fields, Charles B. and Moore, Richter H. (1996). Comparative criminal justice: Traditional and nontraditional systems of law and control. Waveland.
Fox, Stanford (1970). Juvenile justice reform: An historical perspective. 22 Stanford Law Review, 11871239(1970) at 1189.
Juvenile Justice Digest (2001). Florida: Recidivism is high for youths in adult units. Washington, August
17, 2001
Kelling, George (1987). The historical legacy. In From children to citizens. Volume I: The Mandate for
Juvenile Justice (Mark Harrison Moore, ed.)
Office of the High Commissioner for Human Rights (n.d.). Declaration of the Rights of the Child, p.1.
www.unhchr,ch/html/menu3/b/25.htm
Siegel, Larry and Senna, Joseph (2000). Juvenile delinquency: Theory, practice and law. 7th Edition.
Wadsworth.
Short, James F. (1990) Delinquency and society
Snyder, Howard and Sickmund, Melissa (1999). Juvenile offenders and victims: 1999 national report.
Washington, D.C.: Office of Juvenile Justice and Delinquency Prevention.
Terrill, Richard J. (1999). World criminal justice systems: A Survey. 4th Edition. Anderson Publishing Co.
The UN Convention on the Rights of the Child (n.d.). p. 1. www.oneworld.org/child_rights/convention.html
Torbet, Patricia, et al (2000). Juveniles facing criminal sanctions: Three states that changed the rules.
Washington, DC. U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice
and Delinquency Prevention.
Winner et al (1997). The transfer of juveniles to criminal court: Reexamining recidivism over the long term.
Crime and Delinquency. 43:4:548-563
Wong, Dennis S. (2000). Juvenile crime and responses to delinquency in Hong Kong. International Journal
of Offender Therapy and Comparative Criminology. 44:3:279-292.

Case Cited
Kent v. United States, 383 U.S. 541 (1966)

109

AGES OF JUVENILE AND CRIMINAL RESPONSIBILITY

No
Country_____ Responsibility
Australia
6 and younger
Bulgaria
Canada

Juvenile Or
Special
Consideration
7 -17
14-17

Adult
Status
18
18

12-17

18

China
Costa Rica
Cuba
Czech Rep.
Denmark
Eng../Wales
Finland
France

16
11 and younger

12-17

14 and younger

15-18
15
10-13/14-17
15-18

9 and younger
14 and younger
12 and younger

Germany
Ghana
Hong Kong

13 and younger

14-17

6 and younger

7-14

Hungary
India

13 and younger
6 and younger

7-12

Ireland
Israel
Italy
Japan

6 and younger

Kenya
Malta

13 and younger

8 and younger

7-13
12
14-17
7-17
9-14/14-18

Micronesia

18
16
19
18
19
18
18
18
15

Prosecution must demonstrate child has a

mischievous disposition

14
18
20

Juvenile offender is 14-19, lawbreaking child is

under the age of 13

18

Netherlands

11 and younger

10-18

18-21

New Zealand

9 and younger

10-13

14

Singapore

Court must show child knew actions were wrong

Reduced sentencing scale
Can be transferred at 16 with full penal sanctions,
13 -14 with lesser sanctions
18-21 can be dealt with in the juvenile court

Not liable of proven child has not the nature and

consequences of his actions

18

N. Ireland
Norway
Poland
Russia

Comments__________________________
Can transfer to the adult court at various ages in different territories
Are criminally responsible if they are able
to understand the nature of their acts
and govern their own behavior.
Transfer possible at 14 for serious crime:
Mandated transfer at 16 for murder
attempted murder, manslaughter,
aggravated sexual assault w/o juvenile
court retaining jurisdiction
Can be transferred 14 -15, Juvenile
Delinquent refers to those 14-25;
Juvenile Criminal refers to those 18 -25.

Has to show mischievous disposition/ has

reduction in sentencing
Can be 16 in one territory-if suitable physical
and mental maturity
Transfer allowed at 16/ may be subjected to
juvenile criminal law
Only murder and manslaughter-has to prove
accused morally wrong and contrary to law.
Prosecutions of those less that 14 are rare.

17
15
16
6 and younger

7 - 12

Age lowers to 14 for serious-murder, robbery

with violence, rape and theft
Can be exempt if no understanding of the nature and consequence of crime

Slovak Rep
Slovenia

S. Africa
S. Korea
Spain
Sweden

Taiwan
Ukraine
USA

13 and younger

6 and younger
13 and younger

varies

15
14-16/16-18

7-14
14-20
16
15

varies

18-21

15
21

Limited criminal responsibility offered education

services/ limited criminal responsibility can be
punished/ full criminal responsibility
indeterminate sentencing applied
State has to find criminal responsibility
Sweden has no Juvenile Court. Special rules on
sanctioning to age 21. No imprisonment of
below age 18 w/o specific ground to imprison.
No life sentence.

16
varies