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Strasbourg, 23 November 2011



Opinion No. 6 of the CCPE
on the relationship between prosecutors and the prison administration


I. Introduction

1. The Consultative Council of European Prosecutors (CCPE) was established by the Committee of Ministers of the Council of Europe in 2005 with the task of rendering Opinions regarding the functioning of prosecution services and promoting the effective implementation of Recommendation Rec(2000)19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system.

2. The Committee of Ministers instructed the CCPE1 in 2011 to examine the issues the relationship between public prosecutors and the prison administration in the light of Recommendation Rec(2006)2 of the Committee of Ministers to the member states on European Prison Rules.

3. The CCPE drafted this Opinion following the replies received from member states to the questionnaire2. It clearly shows that the relationships between public prosecutors and the prison administration vary mostly in their objectives, content and structure, from no interaction to a rather detailed and structured and/or controlled/monitored one by the public prosecution service and via its special powers. Legal history, national culture and developments not only within the various institutions of justice explain the present variety.

Scope of the Opinion

4. All the provisions of this Opinion concerns the states where public prosecutors have a specific role as regards prison matters. In States where prosecutors do not have such powers, another authority shall always be able to protect the rights of the persons deprived of liberty.

5. The CCPE decided to follow for this Opinion the same scope as in Recommendation Rec(2006)2: it applies to “persons who have been remanded in custody by a judicial authority or who have been deprived of their liberty following conviction”3.

Objectives of the Opinion

6. The confinement of persons who are detained, following either a decision to remand them in custody or a conviction, will always entail the risk, in a closed entity, that the most basic human rights will be infringed.

7. The CCPE aims to define guidelines concerning public prosecutors in exercising their duties vis--vis the persons deprived of liberty, and in particular:

to highlight the fundamental principles and the concrete measures defined in the Recommendation Rec(2006)2 in order to improve awareness and ensure compliance by all concerned authorities, in particular by public prosecutors;

to increase awareness of all the relevant authorities and the members of the prosecuting authorities about the detainees’ conditions, in order for them to entirely fulfil the role entrusted upon them by national legislation on the subject matter;

to determine the fields of activity which involve supervising the living conditions within prisons, ensuring that the law and human rights are respected as well as encouraging that both prisoners’ improvement is acknowledged and that the best possible conditions are guaranteed for their reintegration in society.

General principles

8. It is necessary in any State governed by the Rule of Law that a very well balanced system of checks and balances, execution and control mechanisms is established with regard to deprivation of liberty enforced by the State. This implies that both in the context of custody and in the context of enforcement of sentences, appropriate monitoring and control mechanisms should be in place. [proposal of Norway] In various ways, this issue is taken care of in the member states of the Council of Europe.

9. Therefore, special attention is to be paid to the functions of prosecution services in supervision over the legality of the application of punishments, over the issues of observance of rights and fundamental freedoms of the persons who are serving their sentence and who are in custody, and to the goals and tasks of penal institutions.

10. Whatever the role assigned to prosecutors or administration of penal institutions, a democratic state must have a system of legal norms and institutions capable of safeguarding civil rights and freedoms and therefore of ensuring the interests of community and state in the field of the enforcement of sentences.

11. In their activities, public prosecutors must always be governed by the principle of equality between all the persons taken into custody or convicted. In fulfilling their functions, they must therefore avoid any discrimination based on sex, race, skin colour, language, religion, political or other views, social backgrounds or any other characteristic.

12. Public prosecutors, when they are enforcing or ordering the enforcement of a sentence or a taking into custody decided by any competent authority, are directly concerned with the deprivation of liberty of the individual. [proposal of Norway]

13. In this respect, all member states must set up an impartial, objective and professional authority for monitoring and controlling periodically and in a structured way the enforcement of the deprivation of liberty. In some member states, this can be realized by charging public prosecutors with all powers needed to exercise these tasks in a proper way. In other states, this is done by other instances outside the prison administration.

Reference instruments

14. The CCPE underlines the relevance of the European Convention on Protection of Human Rights and Fundamental Freedoms (ECHR) and the case law of the European Court on Human rights (ECtHR). Namely, the CCPE stresses the importance of respecting Article 3 of the ECHR stating the prohibition of torture4 and the prohibition of inhuman and degrading treatment Jalloh v. Germany, Article 8 (right to respect for private and family life)6 and Article 13 (right to an effective remedy)7.

15. The CCPE took in particular into consideration Recommendation Rec(2006)2 on the European Prison Rules, updating Recommendation Rec(87)3, which enumerates the rules to applied when a member state puts an individual in detention (basic principles, conditions of imprisonment, health, good order, management and staff, inspection and monitoring, untried prisoners, sentenced prisoners)8.

16. The CCPE also took into account the relevant documents of the United Nations9, as well as other documents10.

II. The role of public prosecutors

A. Remand in custody

17. Remand in custody before the trial or before the judicial decision is final in criminal cases shall always comply with reasonable grounds provided for by the law and in accordance with the requirements of the ECHR and the relevant case law of the Court.

18. The competences of public prosecutors shall include the powers to supervise that the investigative bodies observe the rights of the detainee, envisaged by the ECHR and by the domestic law (for instance, the right to know about the reasons of detention, the right to notify the relatives about his/her detention, the right to defence, including the right to have a lawyer etc.), to eliminate the violations made and also to hold persons, who are guilty of these violations, liable.

19. The competences of public prosecutors shall include the power to immediately release a detainee without the need to require any approval of such release by a court decision if they find the detention is without warrant or that a security measure other than remand in custody is appropriate to be required in court in the circumstances.

20. The scope of prosecutors’ supervision shall include the observance of the terms of detention in custody. If they notice that a person has been kept in custody longer than what the law authorizes, public prosecutors shall make arrangements for the release of that person and take measures to hold liable the officials who are responsible for the violations of the requirements of the law.

[Question regarding the previous paragraph: does the Opinion also concern the issue of detention in custody, which is not foreseen in paragraph 5 of the Introduction !]

21. Public prosecutors shall have the possibility to control the legality of how pre-trial custody decided by a judge is executed, as well as to a appeal a judge's decision.

B. The imprisonment of persons and enforcement of sentences

22. Enforcing a sentence, following a decision of a judicial or an administrative authority, leads to depriving the individual of a fundamental right: that of liberty.

23. This consequence gives justification for taking great precautions so that:

the sentence is enforced for a period of time that is not yet statute-barred, following a final conviction by a legal and independent judicial authority;

the nature and/or the length of the sentence be precisely set in accordance with the decision taken;

the grounds for the sentence and its terms are brought to the attention of the detained person.

24. While enforcing the sentence, it is essential that an authority independent of the concerned prison administration should guarantee the legality of the sentence.

25. All authorities competent to enforce a sentence [proposal of Norway]:

must especially ensure to verify that both the legal conditions are fulfilled in order to enforce a sentence and that the sentence is enforced in a way that respects human dignity. Unless special circumstances arise on the basis of emergency (risks of absconding or security reasons), they shall particularly ensure that the convicted person is given sufficient time to organise his or her stay in prison;

must guarantee an efficient enforcement service, which carefully follows each prisoner’s situation in a way that will ensure that he or she shall not be deprived of his or her liberty unless otherwise decided by a court;

shall equally ensure to give a swift response to all questions by the prisoner, his lawyers or the prison administration regarding the enforcement of the sentence and provide any document or useful evidence to justify his position;

shall process and transfer to the competent authority, without delay, any claim that may affect the enforcement of the sentence (application for pardon, request for release…).

C. Detention regime

26. . [proposal of Norway]

27. Although the European Prison rules do not mention the role and position neither of public prosecutors, nor of any other organ in the context of detention, public prosecutors should strictly follow these rules. It is in particular essential that they, within their competencies [proposal of Norway], ensure the full and effective protection of the civil rights of the persons detained in order to allow a consistent application of human rights and freedoms within places of deprivation of liberty.

28. Imprisonment may only be enforced in a manner which respects the dignity of the persons deprived of their liberty and which limits the harmful effect of imprisonment; however, it may not endanger the required protection of society.

29. If public prosecutors have the capacity to supervise the compliance with legal regulations in “detention facilities or places”, they should be entitled to:
regularly inspect the detention facilities at any time of the day,
inspect review documents, files, written orders and resolutions,
meet freely the persons deprived of their liberty without the presence of other persons,
request relevant explanations from employees of the respective facility,
verify the legality of procedures and resolutions issued by the educational bodies with respect to institutional care or protective education, or orders and resolutions of the Prison Service with respect to the pre-trial custody or the sentence,
order that compliance with the applicable legal regulations be ensured with respect to the respective detention,
order that a person be immediately released, provided the person's custody/imprisonment is without warrant/sentence or the time limits of detention prescribed by law have expired or the sentence is already fully served.

30. In case of any breach of legal regulations within the process of detention, public prosecutors shall respond by requesting strict compliance with the applicable legal regulation, irrespective of the fact that additional costs may be incurred. Where appropriate, public prosecutors initiate a criminal investigation.

D. Reactions to offenses/breaches of law in prisons (criminal and disciplinary matters)

31. The CCPE recalls the function of public prosecutors as public authorities who, on behalf of society or in the public interest, ensure the application of the law, where the breach of the law carries a criminal sanction11. States should take appropriate measures that public prosecutors can perform their duties in all places of deprivation of liberty.

32. Individuals who are deprived of their liberty are living in a specific relationship of subordination and vulnerability. Owing to this situation of vulnerability, it is of particular importance that places of deprivation of liberty be, as much as possible, protected from violations of criminal law and basic rules regarding human rights and freedoms.

33. As an instrument of crime prevention within prisons, all criminal offences committed in these places should be considered with specific attention.

34. It is in the public interest that public prosecutors initiate proper investigation when they are aware a crime has been committed, especially in cases of corruption or unjustified pressure on the person detained or in cases of violations of human rights perpetrated buy the staff of the detention facility.

35. In all cases of breach of law in prisons, States should take appropriate measures to ensure that prosecutors get all necessary information to conduct, direct or supervise the investigation or to decide whether to initiate, continue or conduct prosecution before the court.

E. Prison administration

36. Public prosecutors should take into account the Recommendations of the Council of Europe and in particular those of the European Committee for the Prevention of Torture (CPT) with respect to the conditions of detention12. Whenever public prosecutors notice the infringement of these Recommendations, they shall address signalization to the competent chief authorities. Where appropriate, the Prosecutor General, for instance on the occasion of his/her annual report to the Parliament, can propose appropriate measures to cope with the established shortcomings.

37. [proposal of Norway]

38. Public prosecutors in charge of the supervision of the legality of the enforcement of punishments – unlike other organs of control – manage tasks of the Rule of Law from two different aspects. On the one hand they have to ensure the rights of the detainees, so that in their special position they should not face more detriment than prescribed by the law; on the other hand they have to provide for the protection of the rest of the society through ensuring that the sentence is enforced in compliance with the law.

39. Public prosecutors have a capacity to ensure an effective judicial protection since they are close to the places of detention, can visit them on a regular basis, and can act immediately while enjoying appropriate means and a specific experience. [proposal of Norway]

F. Release of prisoners

40. Reintegration is an important goal of the criminal procedure of a State. This requires having sufficient means available to achieve it and favourable living conditions in detention to prepare this reintegration.


42. Hence public prosecutors who gain this experience throughout their career, can put it to good use by sharing it with professionals who deal with the resocialisation of detainees.

[Comment to paragraphs 40-42: establishing a role for the prosecutor during the post-punishment period in the sense of their implication in the resocialisation process is not required. The prosecutor’s role, as defined in the Recommendation Rec(2000)19 under “The Functions of the Public Prosecutor”, is predominantly that of a judicial authority, and as regards their competences concerning certain categories of individuals/activities of general social interest. The resocialisation of former convicts is predominantly a matter of social protection within the competences of certain specialized institutions belonging to the executive power (e.g. the competences of probation services).]


44. Public prosecutors can also [proposal of Norway] have also an important role to play to favour, where appropriate, a conditional release13. [also proposal of Norway]


III. Conclusions

i. Whatever the system in place within each Member States of the Council of Europe, the observance of human rights inside the detention places should be an essential concern for the public prosecutors who have to ensure the compliance with the law and the fundamental principles stated in the European Convention on Human Rights. [problematic conclusion? – suggestion of Norway]

ii. The CCPE noted that, in most member states, public prosecutors play an important part in the enforcement of sentences and in the supervision over the legality of detentions and of the living conditions of the detainees within prisons or other detention facilities.

iii. Prosecutors must have the means to enforce the conditions of remand in custody. [problematic conclusion? – suggestion of Norway]

iv. Prosecutors or other authority competent to enforce the sentence must ensure that all legal requirements are met to put the sentence to execution in respect of human dignity. To that end, the CCPE recommends that :

an efficient enforcement service to be set up to monitor the situation of each prisoner;
the prosecutor answers any question of the prisoner, his/her lawyer or the Prison administration concerning the enforcement of the sentence;
the prosecutor transfers to the competent authority any claim may affect the execution of the sentence.

v. In parallel of the control of the prison administration, prosecutors may have a role to play in monitoring conditions of detention. They must ensure the effective protection of civil rights of persons detained. [problematic conclusion? – suggestion of Norway]

vi. Prosecutors shall have the capacity to open an investigation when it becomes aware of the commission of criminal offenses relating to the violation of legal provisions during the detention.

vii. [problematic conclusion? – suggestion also of Norway]
Prosecutors should participate actively in the preparation of prisoners to release in view of their resocialisation and prevention of reoffending.


Description of the different legal systems and various competences of public prosecution in prison matters (analysis of replies to the questionnaire)

1. In almost half of the 25 members States who participated in preparation of the answers to the Questionnaire, the supervision over the penal institutions is part of the functions of the Prosecution bodies. At the same time, in many states the prosecutors have only limited powers in protecting the rights of the people who are being kept in the places of deprivation of liberty or in custody.

2. The sphere of competence of prosecutors differs significantly from one state to another: starting from overwhelming supervision over penal institutions to individual controlling powers in respect of deprivation of liberty or detention. Taking this into account, the members-states may be divided into three main groups: 1) those in which the Prosecution Services supervise over penal institutions; 2) the ones where the Prosecutors have limited powers to control the places of deprivation of liberty and detention; 3) the ones where the Prosecutors do not have any rights in the above mentioned spheres.

3. In the states where the Prosecutors have full powers in respect of supervision over the execution of laws by the administrations of the penal institutions and places of detention and custody, pre-trial detention, in places of deprivation of liberty and other bodies which enforce punishment and coercive measures, they also observe the rights and duties of the detainees, those taken into custody, the convicted and the persons subjected to coercive measures.

4. To detect and eliminate violations of the law in respect of the persons who are serving their sentence in the form of deprivation of liberty or who have been taken into custody in the timely manner, public prosecutors have rather wide powers: to conduct independent checks of penal institutions; to request the administration to create conditions which ensure the observance of the rights of the detainees, the persons taken into custody, the convicts, and the persons who are subjected to coercive measures; to check the compliance of the orders, regulations, resolutions of the penal institutions’ administration with the domestic law.

5. The legislation of some members-states demand that the prosecutors should conduct regular checks of penal institutions. The frequency of such checks vary in different countries from daily visits to one visit in three months. Some states do not regulate the number of checks and these countries limit themselves only by the recommendation to public prosecutors to eventually conduct an inspection. The check may result in a report, an brief official report (statement) or filing petition (submission) on the detected violations which are to be sent to the director of the institution under scrutiny and if necessary, to the relevant competent body.

6. In many countries, the main solution to ensure legality is to grant a right to a prosecutor to visit the places of deprivation of liberty and custody at any time. In the course of these visits, public prosecutors have an opportunity to familiarize with the documents, to check the conditions of detention of the persons and to communicate with the convicts freely and confidentially.

7. In some states, the frequency of meetings of the prosecutors with persons who are in the penal institutions, is defined by the level of legislation, and in other states, the prosecutors have a duty to conduct individual meetings with the convicts on a regular basis, and in some third states the reason for meeting is a claim or a statement of the convicts. The subject-matter of the applications from the convicts to public prosecutors may be claims on violation of their rights as a detainee, but, the requests can also be of another nature, for instance, the transfer of the convicts to another prison in order to ensure their safety.

8. In the states which entrust public prosecutors with limited powers in the sphere of control over penal institutions, the opportunity of cooperation of the convicted with the public prosecutor is not excluded. In such states, the initiator of such applications is often the convict or the person in custody; they submit their claim to the public prosecutor on cruel treatment or any other violation of human rights. As a rule, the absence of the legislation regulation of such meetings does not exclude the right for the public prosecutor to communicate with the convict in confidentiality, if necessary.

9. Upon detection of the facts of violations of human rights, mostly in all states, where the Prosecution Service is supervising over the places of deprivation of liberty and custody, public prosecutors may demand explanations from officials, suspend execution of illegal orders and resolutions of the administration of the institutions, cancel sanctions, which were applied in violation of the law. In many states, where the Prosecution Services are given wide powers, public prosecutors have a right to immediately release any person who was kept without legal reasons in the institutions which enforce punishment or who was subjected to arrest or pre-trial detention in violation of the law.

10. Violation of human rights during the serving of a sentence or a pre-trial detention justifies the prosecutor’s intervention to put a stop to it. The efficiency and the nature of the intervention of public prosecutors following the acts of prison administration may very from one member state to the other. In many states, violation of human rights in the places of deprivation of liberty or custody gives public prosecutors power to initiate an independent investigation, according to the results of which the decision is taken, to arraign the guilty officials to disciplinary, administrative or criminal liability. It is noteworthy that the opportunity to react to the cases of violations of human rights in penal institutions is granted to the prosecutors also in states where there is no overwhelming of the prosecutor’s supervision over the places of deprivation of liberty or custody.

11. In most members-states, the prosecutors do not have any powers to independently arraign the guilty officials to disciplinary liability. When the signs of disciplinary violation is detected in the course of the investigation, public prosecutors may apply to the state body which is authorized to impose the relevant sanction on the employees of the places of deprivation of liberty and custody. Only in some states do public prosecutors have a right to arraign those guilty to the disciplinary liability.

12. Public prosecutors have considerably wider powers in case the signs of the criminally punishable action was detected in the penal institution. In such a situation, in most states, public prosecutors have a right to initiate a criminal case and conduct an independent investigation. Should there be any cases of sudden death, crimes detected or committed against the convicts or by the convicts himself/herself against some other person who is serving time or against the personnel of the prison, public prosecutors must interfere. At that the legislation of most states grants public prosecutors a right to conduct an independent investigation or transfer of the criminal case to the investigation bodies with a right to supervise the investigation.

13. When the facts of violation of human rights of the convicted or people in custody by the administration of the institution is defined, then in some countries it is regarded as grounds for public prosecutors to file a lawsuit seeking compensation of damage in the civil process.

14. In the states which grant the Prosecution Service the right to supervise over the penal institutions, the Prosecution Offices play a significant role in controlling the compliance of the conditions of imprisonment with the International Law standards and the Recommendations of the Council of Europe. In most states, the frequency of the checks of the conditions of imprisonment is defined in law and this frequency varies from weekly control to scheduled visits four times a year in different states. At the same time, the complaint of the convicts or the detainees about the conditions of imprisonment in most states is viewed as a reason to initiate an ad hoc check of the penal institution.

15. Despite the fact that public prosecutors may be able to reveal facts of improper treatment of the convicts, in most states public prosecutors cannot influence the budget of the penal institution.

16. In some states, public prosecutors have additional powers, for instance, he/she takes a decision about the calculation of the term of imprisonment in the sentence; he/she participates in discussions about the transfer of the convicted; he/she sets restrictions on the conditions of living of the convicted in order to ensure security; he/she decides whether the convict should have an opportunity to leave the penal institutions in cases of emergency; he/she invites doctors of the relevant specializations if it is necessary to examine the person who is deprived of liberty or taken into custody. In a number of states, which grant public prosecutors limited powers in the sphere of control over penal institutions, public prosecutors have a right to examine the issues in order to define the conditions of treatment of persons who have been taken into custody, including the level of the isolation, limit the contacts and use of means of communication.

17. In several states, the powers of public prosecutors in the sphere of control over penal institutions cover only the places where the detainees and those in custody are kept. At that public prosecutors have power to check the documents which confirm the legality of pre-trial detention, to visit the above mentioned institutions at any time, to freely communicate with such persons who are kept in custody. Moreover, in some states public prosecutors have a right to adopt decisions about arrest and taking into custody and also to participate in decision-taking about the expediency of application of special measures to the persons who are under risk due to their role in the criminal communities in the course of the pre-trial detention.

18. In most states, while controlling the legality of imprisonment of the persons, public prosecutors are independent in their activities from other state bodies. However, in almost all of the members-states the Prosecution Office is a unified centralized system and public prosecutors who are fulfilling their powers are subordinated to the senior prosecutor.

19. Some Prosecution Services participate in decision-taking about pardon. Very often when this procedure is conducted, the prosecutors express their opinion on the expediency of pardon for the convicted. In a number of states, the powers of prosecutors also include the supervision over the legality of execution of the decisions on amnesty and pardon.

20. The great significance is attributed to the activities of the Prosecution Office in the sphere of decision-taking about early parole of the convicted from the places of imprisonment. At that the function of the prosecutor, as a rule, is not limited only to the request (motion) on early parole and preparation of the statement for the court on the possibility of early parole of the person. In some states public prosecutors may participate in the sessions of the commission and court hearings on early parole and also may control the legality of the release.

21. The Prosecution Services of many members-states have a right to appeal the decisions of courts which are adopted on the issues of enforcement of the sentence (conviction). In the course of examination of such cases the prosecutors have a right to participate in court hearings with a possibility to submit materials, to file motions and etc.

22. The laws of a number of countries regulate the issues of cooperation of the representatives of the Prosecution Services with the Ombudsman (on human rights). In most states this cooperation has two dimensions: firstly, the information, presented in the reports of the Ombudsman, which may serve as grounds for conduction of prosecutors’ checks, and secondly, the results of the work of public prosecutors in their effort to eliminate the infringements of human rights in the places of deprivation of liberty are submitted to the Ombudsman. In some states Prosecution Services are in contact with public organizations, which supervise and control the observance of human rights in the places of deprivation of liberty.

23. . [proposal of Norway]

24. The representatives of the Prosecution Services of a number of states assess negatively the fact that the Prosecution Services of these states do not have powers in the sphere of supervision over the penal institutions and they express their willingness to examine the proposals on expansion of the functions of the Prosecution Services.

1 1099th meeting of the Deputies Ministers (23 November 2010).

2 See the Appendix to this Opinion as well as individual replies on the CCPE's website:

3 See paragraph 10 of Recommendation Rec(2006)2.

4 See in particular Selmouni v. France (n25803/94), Aksoy v. Turkey (18 December 1996) and Aydın v. Turkey (25 September 1997).

Jalloh v. Germany 4See in particular (n54810/00), Olszewski v. Poland (13 November 2003), Labita v. Italy (n26772/95), Kantyrev v. Russia (21 June 2007), Orchowski v. Poland (n17885/04) and Nazarenko v. Ukraine (29 April 2003).

6 See in particular Vlasov v. Russia (12 June 2008), Ostrovar v. Moldova (13 September 2005) and Enea v. Italy (n74912/01).

7 See in particular Kaya v. Turkey (19 February 1998) and Melnik v. Ukraine (28 March 2006).

8 See also Recommendations No. R(89)12 on education in prison, No. R(93)6 concerning prison and criminological aspects of the control of transmissible diseases including AIDS and related health problems in prison, No. R(97)12 on staff concerned with the implementation of sanctions and measures, No. R(98)7 concerning the ethical and organisational aspects of health care in prison, No. R(99)22 concerning prison overcrowding and prison population inflation, Rec(2003)22 on conditional release (parole) and Rec(2003)23 on the management by prison administrations of life sentence and other long-term prisoners.

9 See in particular the International Covenant on Civil and Political Rights (1966), the Standard Minimum Rules for the Treatment of Offenders (1955), the Guidelines on the Role of Prosecutors (1990), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990).

10 See in particular the Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, adopted by the International Association of Prosecutors in 2005.

11 See Recommendation Rec(2000)19 of the Committee of Ministers to the member states on the role of public prosecution in the criminal justice system.

12 According to the Recommendation Rec(2006)2 (point 4), “Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.” In compliance with the policy and the practices derived from the recommendation, the act to seriously deviate from the law is unacceptable. If such violations of the law are noticed, according to points 92 and 93 of the recommendation, action should be taken to put a stop to it (through the prosecutor’s inspections).

13 See also Recommendation Rec(2003)22 of the Committee of Ministers to member States on conditional release (parole).