At the end of July, Ombudswoman Tena Šimonović Einwalter proposed to the Ministry of Justice and Public Administration an amendment to Article 140 of the Criminal Procedure Act (CPA), which concerns disciplinary offences committed by remand prisoners.

She highlighted the need to regulate a broader range of disciplinary measures, define their minimum and maximum duration, and prescribe the procedure for their imposition. This is necessary to ensure legal certainty and the predictability of legal norms.

In addition to these specific amendments, it is necessary to undertake a systematic revision of the provisions concerning the enforcement of pre-trial detention and the treatment of remand prisoners (Articles 135–143 of the CPA), given that these provisions have not undergone comprehensive reforms.

Although another round of amendments to the CPA has been initiated, unfortunately, the current Draft Law on Amendments to the Criminal Procedure Act—now under public consultation—does not include a comprehensive revision of these provisions, nor the already mentioned Article 140. The consultation is open until 22 October 2023, and the Ombudswoman will contribute comments and proposals.

Remand Prisoners in a Disadvantaged Position Compared to Convicted Prisoners

As the Ombudswoman notes, under the current legal framework, disciplinary procedures for remand prisoners differ from those applicable to persons serving prison sentences. Remand prisoners can be subjected to only one disciplinary measure (restriction of visits and correspondence), regardless of the offence committed. This is set out in Article 140 of the Criminal Procedure Act.

By contrast, convicted prisoners can be subjected to four different disciplinary measures under the Execution of Prison Sentences Act: a reprimand, restriction or temporary denial of access to money for up to three months, denial of certain or all privileges for up to three months, and solitary confinement for up to 14 days, either during leisure time or continuously day and night.

Therefore, in terms of limiting contact with family members due to disciplinary liability, remand prisoners are in a more disadvantaged position than convicted prisoners, whose contact with family is not restricted even during the most severe disciplinary measure—solitary confinement.

This legal arrangement is contrary to the European Prison Rules, which state that prisoners shall be allowed, as far as possible, to communicate with their families and others by correspondence and by receiving visits (Rule 24.1).

While restrictions on communication and visits may be applied when necessary for the purposes of a criminal investigation, maintaining order and security, preventing criminal offences, or protecting victims, such restrictions—including those specifically ordered by judicial authorities—must, in any case, ensure an acceptable minimum level of contact (Rule 24.2).

It is also necessary to prescribe minimum and maximum limits for disciplinary measures imposed on remand prisoners and define the procedure for their imposition. These are currently not set out by law, which is unacceptable, as respect for the rule of law requires that legal norms be clear and precise.

Examples from National Preventive Mechanism Visits

Below are several examples that illustrate the problems caused by the current legal framework, based on visits by the National Preventive Mechanism for the prevention of torture and other cruel, inhuman or degrading treatment or punishment (NPM):

  • A remand prisoner who verbally insulted a judge was given a disciplinary measure of one month of restricted visits and correspondence. The same measure was imposed on another remand prisoner who physically attacked and injured a fellow remand prisoner.
  • In some cases, alongside restrictions on correspondence, phone call restrictions were also imposed—even though such a sanction is not provided for under the Criminal Procedure Act.
  • The use of narcotic or psychoactive substances is defined as a disciplinary offence for convicted prisoners (under the Execution of Prison Sentences Act), but not for remand prisoners (under the Criminal Procedure Act). Nevertheless, one remand prisoner received a sanction of three months of restricted visits and six months of restricted correspondence following two positive tests for psychoactive substances. This disciplinary measure was imposed for an offence that is not legally defined, and its duration was not prescribed by law.

Need for Systematic Legal Reform

This legal vagueness and inconsistency in practice are the result of the fact that the provisions on the enforcement of pre-trial detention and treatment of remand prisoners have not yet undergone systematic reform—despite frequent amendments to the Criminal Procedure Act. It is therefore necessary to address this issue without delay, in order to uphold the rule of law and protect the human rights of persons deprived of liberty.

More on this topic is available in the Ombudswoman’s 2022 Annual Report, in the chapter titled “Prison System.”