Rule included in the Decree of the Assembly of the Republic that approved the new Code governing the Execution of Sentences which, subject to certain conditions, gives the Director-General of Prison Services the power to place inmates in an open scheme outside prison
Powers of the prison administration
RULING Nº 427/2009
28 of August of 2009
The rule included in the Decree of the Assembly of the Republic that approved the new Code governing the Execution of Sentences (CEP), which, subject to certain conditions that are necessary in order to safeguard order, security and discipline in prison, the protection of victims and the defence of public order and peace, and subject to the consent of the inmate concerned, gives the Director-General of Prison Services the power to place inmates in an open scheme outside prison, is not in breach of either the rules governing reserved jurisdiction, or the requirement that is placed on Public Administration bodies to respect the res judicata in the case in question.
The President of the Republic asked the Constitutional Court to conduct a prior review of the constitutionality of a rule included in the Decree of the Assembly of the Republic that approved the new Code governing the Execution of Sentences. His grounds for making this request were his understanding that the rule in question would significantly change both the existing legislative model governing this matter, and the penal paradigm for the purposes of sentences. He also justified it with reference to the circumstance that the Public Prosecutors’ Office was now going to replace the judges of the Sentence Execution Court as the authority with the responsibility for regularly visiting prisons, verifying the legality of the decisions taken by the prison services, and performing other functions linked to the execution of sentences; and to the fact that prison administration bodies were now to be given the power and obligation to decide whether an inmate should be placed in an open scheme when a set of preconditions in terms of both the essence and the form of the situation are fulfilled.
The President of the Republic argued that the legal rules he was asking the Court to consider raised doubts as to the practical compatibility between the protection of new rights that were to be granted to inmates on the one hand and the pursuit of the purposes of social reparation, the effective safeguarding of fundamental legal values and assets which the Penal Law is required to ensure, and the prevention of situations that cause disquiet in society on the other.
He said that he thought that there were aspects of the new system that undermined the current paradigm for the execution of custodial sentences, which consists in distinguishing between a material domain involving the control and modelling of the execution of sentences, with which the jurisdictional function (undertaken by the Sentence Execution Court) is charged, and a domain covering the organisation and inspection of penitentiary facilities, which concerns the actual implementation of sentences and is the responsibility of the administrative function.
In its Ruling the Court said that the placing of a convicted inmate in an open scheme falls within the framework of fundamental political/criminal guidelines set out in a number of international instruments on the execution of criminal sanctions involving the deprivation of freedom. These include Committee of Ministers of the Council of Europe Recommendations Rec(2003)23 and Rec(2006)2, of which the latter specifically covers European Prison Rules. These international documents lay down principles such as those of individualisation, normalisation (making life in prison as close as possible to the reality of life in society), responsibility, and progression, and say that sentences should be executed under progressively less restrictive conditions. They also say that the restrictions imposed on persons who are deprived of their freedom must be limited to that which is strictly necessary and proportionate to the legitimate objectives that underlie them, and that imprisonment must be directed towards making it easier for inmates to reintegrate into free society.
The decision to place a convicted inmate in an open scheme depends on two fundamental political/criminal options: that the execution of sanctions involving the deprivation of freedom must be designed to socialise the offender; and that the deprivation of freedom is the ultima ratio of criminal policy. The former is dictated by the principle of sociality, under which the state is responsible for the task of providing convicts with the conditions they need in order to achieve reintegration into society; the latter is derived from the principle of the necessity of a penal intervention.
On the question of whether, when it reserves the jurisdictional function to the courts, the scope of Article 202(2) of the Constitution covers the decision to grant permission to leave the prison, the Constitutional Court felt that compliance with this provision only requires that the court have the last word, not the first one. The legislation in question ensures that this is the case, inasmuch as although it makes the Director-General of Prison Services responsible for the decision to place an inmate in an open scheme outside prison, he must notify the representative of the Public Prosecutors’ Office (PPO) at the Sentence Execution Court thereof, in order for the decision’s legality to be verified. If the PPO finds that the decision is legal, it then simply orders that it be filed; if not, it must challenge the decision and ask the Sentence Execution Court to annul it.
The Ruling emphasises that it is possible to identify a clear evolution in the path towards the jurisdictionalisation of prison sentences. This evolution was partly driven by the legal position which inmates gradually came to occupy in the execution of custodial sentences, in a process that went side-by-side with the “new concept of the fundamental rights as rights that accrue to everyone, in the various circumstances that occur in the life of society, in relation to every authority whatsoever”. Article 30(5) of the Portuguese Constitution expresses the end result of this concept – Convicted persons who are the object of a sentence or security measure that deprives them of their freedom shall retain their fundamental rights, subject only to such limitations as are inherent to their convictions and to the specific requirements imposed by the execution of the respective sentences.
The Court considered that if one takes the existing penal law as the point of reference, one must conclude that placing an inmate in an open scheme outside prison is not comparable to the decisions that only a judge can take. In particular, it is not comparable to the grant of parole, or the grant of home leave. When parole is granted, there is a change in the content of the sentence, which “ceases to be” one under which the convict is deprived of his freedom, inasmuch as parole means that his freedom is restored to him.
The same is true of home leaves, which traditionally fall within the competence of the Sentence Execution Courts, because in this type of departure from prison there is also a change in the content of the sentence in which the inmate was convicted, given that his freedom is restored to him for a few days. It is different when the Director-General of Prison Services places an inmate in an open scheme outside prison, because there is no change in the content of the sentence in which the inmate was convicted. This decision “continues to entail” the deprivation of freedom, in that there is only a change in the content of the execution of the custodial sentence, which is justified in political/criminal terms with reference to the constitutional-law principles of sociality and the necessity of the penal intervention.
The execution of a custodial sentence must be guided by the principle of the individualisation of the way the imprisonment is handled, which means that it must be programmed and divided into phases in such a way as to progressively help the inmate to come closer to a free life, by making the necessary changes to the executory system. As such, “access to a free environment” – execution of the custodial sentence in an open scheme outside prison – is an underlying the possibility that already exists in the original custodial sentence. Placing the inmate in an open scheme outside prison is one of the formats via which custodial sentences can be executed, and is not included in the work of repressing breaches of democratic legality because, when the placement decision is taken, the penal-law conflict which was generated by the commission of the crime and was subsequently resolved in the conviction and sentencing, does not arise anew. It is in the judicial decision to convict and sentence the agent who committed the criminal infraction that the latter is deprived of his freedom in order to safeguard other rights or interests that are protected by the Constitution.
The Ruling was the object of two dissenting opinions, one of which was that of the President of the Court. The author of the first opinion felt that the Constitution requires that the decision to place an inmate in an open scheme outside prison be issued by a judge. He said that in reality the open system is characterised by the fact that it involves education, vocational training, work, or programmes undertaken in a free environment without direct surveillance. It is a semi-parole system. “Semi” because it only lasts as long as is strictly necessary for the inmate to study or work outside the prison, and “parole” because the inmate can only use this period of freedom to engage in those activities (Translator’s note: the Portuguese term for parole is literally “freedom subject to conditions”, so the sense here is “semi-freedom subject to conditions”). This system is materially identical to the semi-detention system, which trial judges are free to impose in the case of prison terms of up to one year, on condition that the law does not require their substitution by another kind of punishment, or by imprisonment only on non-working days. Whether or not one considers placing an inmate in an open scheme outside prison to be a change in the content of the original conviction and sentence, a way of making the punishment that was imposed at that time more flexible, or a possible format for the execution of the original sentence, the decision to apply this scheme determines, during one phase of the sentence’s execution, the content of the custodial penalty to which the inmate was sentenced.
While the original sentence defined the type and extent of the punishment, the decision to place the inmate in an open scheme outside prison defines the concrete system under which the sentence is served, so it plays a role that is at least as important, if not more so, than the original one, in terms of the way in which a breach of democratic legality is repressed by penal means.
The decision must evaluate and take into account the inmate’s previous behaviour in prison, the danger that he may take advantage of this period of freedom to escape execution of the sentence or commit new offences, the protection of his victim(s), and the defence of public order and peace. In the opinion of the dissenting Justice, what is at stake in this decision is the resolution of the conflict between the values of freedom and individual rights on the one hand, and the defence of society in its present form on the other.
The author of this dissenting opinion went on to say that when it comes to the division of the state’s powers, there is no doubt as to the necessarily judicial nature of sentences that impose criminal punishments, which is specifically laid down by our Constitution. Because it leads to the determination of the essential content of an earlier custodial sentence, the decision to place inmates in an open scheme outside prison must share that same nature.
The author of the second dissenting opinion argued that the possibility created by the legislation in question of placing an inmate in an open scheme outside prison, constitutes a modelling of the execution of custodial sentences which, given its importance to the convict’s resocialisation, is more than a mere instrument for making prison terms more flexible that is intrinsic to the management of the life inside prisons. Both the legal design of the institution and the process of weighing up interests that it presupposes and entails bring the adoption of this measure closer to the performance of the jurisdictional function, given the central role that this option plays in the execution of sentences involving the deprivation of freedom. The second dissenting Justice argued that although it does not involve restoring a convict’s freedom (as is the case when an inmate is paroled), this measure nonetheless possesses a centrality in the execution of his prison term and thus in his resocialisation – a role that continues to warrant placing the competence to decide whether or not to place an inmate in such a scheme in the hands of the judge of the Sentence Execution Court. It is thus the importance of the instrument for modelling the execution of sentences which involve the deprivation of freedom, and the scope which that instrument is acknowledged to possess, that require there to be a judicial intervention. This is all the more so because, from the point of view of the convict’s resocialisation, that importance and scope are no less than those of a format such as home leaves, and the latter fall within the competence of the Sentence Execution Court. Indeed, one precondition for the measure in question is that the inmate must already have successfully completed some form of short-term release authorised by a jurisdictional body, and it would be rather strange if the need for a jurisdictional intervention were to be dispensed in the adoption of one scheme, when the same thing was not the case for one of its preconditions.