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Strasbourg, 7 January/janvier

CCPE(2011)1 PROV2

Bilingual/Bilingue

DRAFT QUESTIONNAIRE FOR CCPE DELEGATIONS

with a view to the preparation of the

on the relationships between prosecutors and prison administration, in particular in the light of the Recommendation Rec(2006)2 on the European prison rules

English

SE reply

Remarks

 

This questionnaire is addressed to prosecutors and the member of the CCPE of each State shall be responsible for collecting of replies.

In some States, prosecutors have only reduced powers within matters of prison administration. Some States will therefore not be able to reply to all questions.

It will not be implied from the fact that this questionnaire was answered that prosecutiors shall have a role in this matter.

The scope of the questionnaire is identical to that of Recommendation Rec(2006)2 (see para.10): this questionnaire concerns any person deprived of liberty, in any form whatsoever and not strictly the person detained in a prison.

This questionnaire does not concern the enforcement of sanctions in general but is limited to the prosecutor’s supervision of the legality of the enforcement of sanctions.

 

Question 2

What are the Prosecution Service’s powers regarding prison matters and in terms of deprivation of liberty?

Criminal investigation:
A prosecutor is responsible for issuing an arrest warrant. If a suspect is arrested it is up to a court to decide on detention. If a suspect is detained during the criminal investigation or the court proceedings in a case, a prosecutor decides – after authorization from a court - on how to restrict the personal freedom (receiving visitors, contact others, reading newspapers etc.).
Execution of sentences:
In Sweden the role of the prosecutor is very limited regarding prison matters. A prosecutor is involved as opposite party when a convicted to life-time imprisonment applies for a fixed term of imprisonment.

Question 3

In States where prosecutors do not have full authority in prison matters, what are nevertheless their means of action used as regards prisons ?

In Sweden, as mentioned above, prosecutors do not have full authority in prison matters. Thus their means of actions are restricted to the ones stated under Question 2.

Question 4

If prosecutors have general competences as regard prisons and detention, what kind of means have been provided to the Prosecution Service to allow its effective and fast action towards protecting human rights in matters of prison administration?

A Swedish prosecutor is, except for the situations mentioned under Question 2, only involved in prison matters if there are suspicions of a crime being committed.

Question 5

What are the positive and decisive elements of the prosecutor’s role in terms of protecting Human rights compared to other mechanisms of legal protection?

As mentioned above a prosecutor is involved if a crime is to be investigated. There are other authorities monitoring the Prison and Probation Service’s compliance of human rights.

Question 6

What could be the improvements to this system of protection?

-

Question 7

Do prosecutors have jurisdiction to examine whether the rights (Human rights and especially procedural rights) of persons in criminal (for example as regards enforcement of prison sentences or pre-trial detention) or administrative detention are respected at the detention centre?

Only if there are suspicions of a crime being committed, e.g. breach of duty or unlawful detention.

Question 8

Can a prisoner meet in private with a prosecutor to determine whether they had been subjected to torture or to any other inhuman or degrading treatment or punishment?

In principle, no. But if there is a suspicion of a committed crime, prosecutors will be in charge of the criminal investigation if there is a reasonable suspect at hand. Usually an interrogation of a victim of crime is conducted by the police, but a prosecutor can be present, or even carry out the interrogation himself. This possibility is used in special cases.

Question 9

Do prosecutors examine, and if so, how frequently, whether the accomodation provided to prisoners meet the recommendations of the Council of Europe (and namely of the European Committee for the prevention of Torture/CPT1? Can prosecutors make proposals in that direction which have an influence on the relevant budget ?

No.

Question 10

What kind of means exist for prosecutors to deal with authorities or officers/employees which have not completely or properly enforced the decisions of the court or the Prosecution Service related to punishments and/or measures involving deprivation of liberty? If a prosecutor detects such negligence, is he entitled to give binding instructions for the immediate termination of the breach of law? Is it in their power to initiate criminal or disciplinary proceedings, actions for damages or any other kind of impeachment? What other prosecutorial instruments are at his disposal ?

A prosecutor is responsible for decisions regarding deprivation of liberty (receiving visitors, contact others, reading newspapers etc.) concerning a detained during the preliminary investigation or the on-going court proceedings. If such a decision is improperly executed, the prosecutor is entitled to call the Prison and Probation Service’s attention to this fact. If (not very likely) the Prison and Probation Service do not conform to the directions, the prosecutor is entitled to initiate criminal proceedings.

Question 11

How often do prosecutors carry out monitoring visits of institutions of criminal and administrative detention? Are there concrete follow-ups related to these visits?

Prosecutors do not perform monitoring visits.

Question 12

Within the framework of their monitoring duties, do prosecutors have the power to take action at any time of the day (even at night) in the institutions of criminal and administrative detention?

See Question 11 above.

Question 13

May prosecutors commission experts to assist them in their tasks related to supervision and inspection?

See Question 11 above.

Question 14

Are complaints and/or denunciations regarding criminal and administrative detention subject to prosecutorial inquiry independently of any relevant authority or employees/officers? Is it a prosecutor’s duty to complete investigations himself/herself or is he/she allowed to forward these complaints for investigation to the officers/employees that are the subject of those complaints?

The Prosecution Authority has got a duty to handle a reported crime. According to general rules for civil servants a prosecutor must also give the complaint, not being a report of a criminal act, an answer of some sort. That answer could contain a reference to the correct authority.

Question 15

In case of sudden death, accident or criminal offence committed against a prisoner, or if a prisoner commits a crime against another prisoner or a prison staff member, is the investigation conducted by a prosecutor acting as an independent judicial authority or is it simply supervised by a prosecutor? Do prosecutors have any role in investigations?

Such a criminal investigation is conducted by a prosecutor, assisted by the police if there is a person being reasonable suspected. The prosecutors always act as an independent authority.

Question 16

Are prosecutors entitled to take action in procedures concerning the adoption/revocation of special measures for high risk detaineed or subject to special restrictions in connection with their role and position in active criminal organisations? If so, how?

No actions, but the responsible prosecutor is to be consulted when the Prison and Probation Service are to choose which prison to put a prisoner sentenced to more than four years of imprisonment.

Question 17

With a view to preserving them from any type of influence, are prosecutors autonomous or subordinated to other colleagues when monitoring the detention’s legality?

The question is not relevant for Swedish conditions.

Question 18

Is a prosecutor involved in granting a person’s pardon, amnesty or release, especially in the case of negative effects resulting from the punishment? Do prosecutors supervise criminal records?

A prosecutor is involved as opposite party when a convicted to life-time imprisonment applies for a fixed term of imprisonment. Prosecutors do not supervise criminal records.

Question 19

Are special qualifications and training required of prosecutors who carry out duties in matters of criminal and administrative detention? Please specify.

No.

Question 20

What acts (presentation of conclusions, attend hearings, appeal against court decisions) are prosecutors entitled to carry out during proceedings before judges with jurisdiction over the enforcement of sentences/surveillance judges (“juges de l’application des peines”), in states where such judge exists?

In states where such a judge does not exist, what acts (release on probation, subsequent alteration of the detention’s enforcement scheme, further restriction of a detainee’s rights, placement in solitary confinement, disciplinary punishment, and so on) are prosecutors entitled to carry out as regards court decisions?

Such judges do not exist in Sweden.

As mentioned above, If a suspect is detained during the criminal investigation or the court proceedings in a case, a prosecutor decides, after authorization from a court, on how to restrict the personal freedom (receiving visitors, contact others, reading newspapers etc.).

Question 21

When monitoring the enforcement of punishments, do public prosecutors interact with the ombudsman or any other organisation linked to or charged with controlling the enforcement of punishments? If so, what type of interactions are they? Could you give the names of these organisations, whether they be institutional or not, and explain briefly their roles?

Swedish prosecutor does not monitor the enforcement of punishments.

Question 22

Could you give other useful information to the preparation of the draft Opinion (relevant questions to add, documents, etc)?

-


1 Suspects held in custody/defendants, men/women, juveniles/adults, criminal prisoners/other prisoners, ill/healthy persons, accessories to criminal conspiracy, recidivists/first offenders, officials - police, military, detention facility staff - involved in criminal procedures.