European Prison Rules: “progressing the conversation”

Harvey Slade. The European Prison Rules (EPR) seek to provide a set of standards that can apply across Europe. In theory, they reflect shared agreement among countries on how prisons should be managed in order to ensure safety, and the protection of prisoners’ rights. They are non-binding, but they do get referred to by the European Court of Human Rights (ECtHR), as well as the European Committee for the Prevention of Torture (CPT).

In this sense, they are a useful tool for inspection bodies, as well as judicial authorities (like the ECtHR) to point to when they feel a country’s prison practices are not good enough.

The EPR were last revised in 2006, but nine years later, the UN Standard Minimum Rules on prisons (renamed the “Nelson Mandela Rules”, NMR) were adopted. They provided stronger standards on solitary confinement, by outlining that states cannot subject someone to solitary confinement for more than 15 consecutive days. Around the same time, the UN Bangkok Rules were adopted, on the treatment of women prisoners — something that the EPR said very little on. Because these standards were adopted by all Council of Europe member States (at least the NMR were), it was important that the European Prison Rules were also updated to reflect these new commitments, and improved standards. There is also a desire at the Council of Europe level to ensure that it is a standard bearer, and it is therefore important that the EPR are not seen as outdated among member States.

HS. The EPR apply across the 47 member States of the Council of Europe and are developed through a process of agreement among member States. The most controversial update to the EPR is in relation to solitary confinement. It was the most difficult to get countries to agree to. In Scandinavia, there is a widespread practice of using solitary confinement for people in pre-trial detention, partly to assuage fears that detainees would collude with one another before a trial. Of course, this can be an immensely damaging practice, and serve as a form of coercion in its own right.

Denmark, for example, has reserved the right to not comply with some of the new rules on solitary confinement, and I’m sure this was a motivating factor.

Likewise, the EPR were unable to establish a limit on the number of days that someone can be subject to solitary confinement for disciplinary reasons, despite the fact it is already in breach of the NMR. This is in part because some countries still have limits in their own national law that allow disciplinary solitary confinement for up to 30 days. The current rules reflect compromise and agreement between countries. But, as with the Danish reservation, that does not mean that states always follow rules to the letter. Hopefully, they serve an important role in progressing the conversations on prisoners’ rights and serving an important part of the international body of standards seeking to improve conditions for prisoners.

HS. The key developments in this latest version are in relation to solitary confinement. The 2006 version of the Rules contained only one reference to the separation or solitary confinement of prisoners, which was insufficient. In the meantime, the Nelson Mandela Rules established in 2015 a key definition of solitary confinement: the separation of a prisoner for 22 hours or more a day. They also formulated a key restriction on its use and prevented prison administrations from subjecting someone to a such treatment for more than 15 consecutive days.

There is a huge body of evidence demonstrating that, even after a few days, it can have immensely damaging effects on prisoners, because they are locked up by themselves, with very few external stimuli to focus on.

It can lead to hallucinations, anger, self-harm, and serious damage to mental health. Despite this, countries routinely rely on solitary confinement to keep prison order: either by removing troublesome prisoners away from others, or by removing vulnerable prisoners for their own protection. It is also used as a punishment and for pre-trial detainees, to prevent collusion. But in all cases, it can be hugely damaging. Whether it is intended as a punishment or not matters little to the prisoner in the end, because the effects are often immensely punishing.

For these reasons, it is important that international standards seek to constrain how countries use solitary confinement. It is far too often relied upon to make lives easier for prison authorities without fully respecting how much damage the measure is doing. Unfortunately, solitary confinement is a reality, and we are not yet in a place where states would agree to outlaw it entirely. What was important for us was getting them to agree on limiting how they use it.

The new EPR require at least two hours of meaningful human contact to be offered to any prisoner separated for safety or security. They also require separation measures to be suspended where they are adversely affecting a prisoner’s health. These are important developments in protecting individual prisoners at the end of these potentially dangerous measures.

Unfortunately, the Rules do not establish a fixed time limit for which member States can subject someone to solitary confinement for disciplinary reasons, only requiring that member State sets their own limit in national law. In contrast, the European Committee for the Prevention of Torture (CPT) for instance has long recommended a 14-day limit. It is worth noting that Rule 60.6 did see key updates in other areas: for example, it now requires the suspension of solitary confinement if the “prisoner’s mental or physical condition has deteriorated”, and prohibits its use on “children, pregnant women, breastfeeding mothers or parents with infants in prison” (in line with the Nelson Mandela Rules).

The EPR contain a provision requiring that they be regularly updated – which is important to stay in line with developing standards and best practice. One area that was updated in the new revision, but I believe requires more detailed elaboration in a separate Recommendation of the Council of Europe, is in relation to women in prison. At a UN level, the ‘Bangkok Rules’ are a key document specifically in relation to women prisoners and their distinctive needs. I believe it is desirable to have a similar set of standards at the Council of Europe level in the future.