3. Implementation on detention

The problem of overcrowding

During our visits to prisons we were once again confronted by the problem of the serious overcrowding that faces remand detainees. As early as in the 1996 annual report we warned that remand detainees arenot convicts and that the assumption of innocence applies to them.Nevertheless detention usually takes place in premises and underconditions which are worse and less favourable than those found inprisons for convicts serving prison sentences.

Overcrowding is particularly apparent at Ljubljana Prison, whererenovation work means that only approximately half the living quartersand other premises are in use. Remand detainees at Ljubljana Prisonwere in 1998 actually victims of the renovation, although therenovation itself is welcome since it will improve the livingconditions of detained persons. We expect the renovation of the prisonto be complete by the end of February 1999, as guaranteed by the UIKS.

Considerably less certain is the fate of the Ljubljana Prison facilityat Radovljica, where overcrowding and living conditions are such thatthey are already a violation of the right of the remand detainee todignity and can even lead to inhuman or degrading treatment. A decisionwill be needed as soon as possible as to whether the Radovljicafacility should continue to serve as a detention centre or whether itshould perhaps even be closed. As long as people, including many remanddetainees continue to be held in custody at the Radovljica facility, weneed to ensure these people a suitable standard, including all therights and privileges pertaining to persons in custody, and inparticular to remand detainees.

Poor living conditions

Poor living conditions are a cause for concern,particularly given the fact that remand detainees can remain indetention for several months, or even for a year or more. Livingconditions and general conditions in detention cells must be such as toensure the respecting of human dignity. Detention cells must conform tohealth requirements, where special attention is paid to cubic capacityof air, minimum living surface, ventilation and lighting (naturallight). We have frequently found poor ventilation and a lack of naturallight in cells. For security reasons and in order to preventcommunication, the windows in detention cells are fitted with a meshand with shaded glass, both of which reduce illumination and(especially when the weather is cloudy) make it impossible to read bynatural light. Remand detainees at Radovljica have drawn our attentionto the fact that though there are ventilators in the cells these do notwork. Poor ventilation is especially critical in those cells where thelavatory bowl is only separated from the rest of the cell by a curtain(as at Radovljica, but also at Ljubljana, which is the reason for therenovation). Sanitary facilities of this type make it difficult forremand detainees to perform their bodily functions in a dignified wayand are unpleasant for cellmates too - apart from any other reason,because of the smell.

The right to work in accordance with the possibilities of the institution

It is almost the rule in Slovene prisons that remanddetainees spend 22 hours a day in their cells. Apart from two hoursdevoted to exercise in the fresh air, remand detainees spend the restof the time in their cells, many with no employment whatsoever. Such asituation cannot be a positive influence on the physical and mentalstate of remand detainees.

Before the changes and additions in 1998 the ZKP stipulated that it wasalways necessary to enable remand detainees to do work whichcorresponded to their mental and physical capabilities, under thecondition that this was not detrimental to the punishment process. Amajor deficiency of some prisons is that they do not enable remanddetainees to work. Unfortunately the amending statute to the ZKP hasintroduced a change in the regulation of the remand detainee’s right towork. The new Article 213a of the ZKP stipulates that remand detaineesmust be given the opportunity to work but only in accordance with thepossibilities of the institution. A change in the law which makes theremand detainee’s right to work conditional on the possibilities of theinstitution for providing work is undoubtedly a backwards step from thepoint of the view of the rights of the remand detainee. It is to befeared that in the future there will be even less work for remanddetainees because prisons will simply (too quickly) appeal to the factthat there are no possibilities for this.

Recreation for remand detainees

Not only are remand detainees withoutwork, they are often without the genuine possibility of recreation orphysical exercise outside the two hours set aside for exercise in thefresh air. Most institutions do not have a room (e.g. a gymnasium orfitness room) intended for recreation or the physical and mentalrelaxation of remand detainees. Remand detainees get round this problemby keeping sports equipment in their cells with which they exercise.But this type of exercise is limited by the overcrowding problem andalso represents an impediment to cellmates. Most prisons have sportsgrounds, but remand detainees are denied access to these for securityreasons. The long-term goal of institutions must be to enable remanddetainees, too, to have access to sports grounds, which are currentlyclearly underused in many prisons. The sports hall at Ljubljana Prison,for example, is empty every morning and remand detainees could use itat least until 3.00 p.m. every day provided it was suitably secured.

Visits

In the 1995 report of the Human Rights Ombudsman we pointed outthat the implementation of detention was regulated by a non-statutoryact: the 1981 regulations on the implementation of detention. Theimplementation of detention encroaches on human rights and freedoms andis therefore a legal matter which cannot be regulated by anon-statutory act. A response to this observation has come in the formof a new chapter to the ZKP which regulates the implementation ofdetention. Unfortunately during the changes and additions to this lawthe opportunity was missed of regulating in more detail the contacts ofremand detainees with the outside world, especially in regard tovisits. This area is only partially and therefore inadequatelyregulated by the ZKP.

a) partition walls in visiting rooms

The Minister of Justice must issue by 23 April 1999 more detailedregulations on the implementation of detention. Until then theregulations on the implementation of detention will be employed to theextent that they are not contrary to the amended ZKP. The secondparagraph of Article 35 of these regulations stipulates that remanddetainees’ visits shall take place in a special room. There is howeverno regulation stipulating that there should be a partition wall (madeof bullet-proof glass) in the visiting room which prevents physicalcontact between the remand detainee and his visitors (e.g. his child).Nevertheless an increasing number of prisons in Slovenia have avisiting room fitted with a partition wall. The visiting room at KoperPrison does not even have microphones, which makes communicationbetween visitors and remand detainees difficult.

Even measures deriving from security considerations need to beconsidered in accordance with the principle of proportionality: theonly admissible restrictions are those specified by law and which arenecessary for the achievement of a legitimate goal. Practice ortreatment which does not have a basis in an applicable regulation andrepresents a restriction or obstacle to the exercising of a right of aremand detainee is contrary to law.

b) duration of visits

The ZKP does not stipulate the duration of visits. Article 213b merelycontains the provision that with the permission of the examining judge(or president of the senate) a remand detainee may be visited, withinthe limits of the house rules, by his immediate family and, at theremand detainee’s request, by a doctor and others. Thus with regard tovisiting remand detainees, the ZKP appeals to house rules.Unfortunately we have not in practice come across a case where a prisonregulates the reception of visits by a remand detainee within theframework of its house rules. The legal reference to house rules thusdoes not help clarify the matter.

Under Article 59 of the Regulations on the Implementation of Detention,more precise provisions on the treatment of remand detainees shall bestipulated by the order of the day issued by the governor of theinstitution by agreement with the president of the circuit court. Insome institutions governors have used this power to determine the timeand duration of visits to remand detainees, which is contrary to thelegal instruction leaving this area to be regulated by the house rules.

A further contribution to the lack of clarity in relation to the remanddetainee’s right to receive visits comes from the third paragraph ofArticle 35 of the Regulations on the Implementation of Detention, whichprovides for the time and duration of visits to be determined by aruling of the president of the circuit court in agreement with thegovernor of the institution. The legal basis for the time and durationof visits is thus, pursuant to the mentioned regulations, a ruling ofthe president of the court.

The practice of courts and prisons in the determining of the time andduration of visits varies considerably. As a rule remand detainees arepermitted a visit once a week, this to last from 15 minutes (at leastthis was still the case in the first months of 1998) to one hour.Institutions usually link the limitation of duration of visits to theproblem of overcrowding, lack of premises for visits, staffingdifficulties, the large number of persons in custody, and other similarfactors, which excuses are used to the detriment of remand detainees,or rather of their right to visits.

Visits must be regulated in such a way as to render impossible thevaried practice whereby the duration of a visit depends on which prisonthe remand detainee finds himself in, if not on the arbitrary decisionof staff in any given case. In determining the duration of visits itmust be remembered that the principle of the assumption of innocenceapplies to remand detainees and that any restriction of their rights,including the rights to contacts with the outside world, must beinterpreted restrictively. It must be stipulated by law that a remanddetainee’s visit cannot be limited to less than one hour. The law wouldtherefore have to stipulate a lower level for the duration of visits toremand detainees.