Pillars of democratic constitutional states in corrective administrations: Explaining cases of inhuman or degrading treatment or punishment in European corrective facilities by the rule of law implementation

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Pillars of democratic constitutional

states in corrective administrations

Explaining cases of inhuman or degrading treatment or punishment in

European corrective facilities by the rule of law implementation

Master Thesis Public Administration: International and European Governance Leiden University, Faculty of Governance and Global Affairs.

11 January 2019

Author: Anne van Petersen, s2130661 Supervisor: Andrei Poama

Capstone topic: Administration of Criminal Injustice 20,141 words

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Abstract

Human rights and the rule of law are core values of democratic constitutional states. This study investigates how the implementation of the rule of law in the corrective administration explains differences in positive rulings of inhuman or degrading treatment or punishment among European member states. Article 3 of the European Convention of Human Rights protects the human rights of prisoners by prohibiting torture and inhuman or degrading treatment or punishment. Case studies published by the European Court of Human Rights are used to measure positive rulings of inhuman or degrading treatment or punishment. The rule of law is measured by a tailor-made adjusted rule of law index which consists of the following sub-factors: government powers are effectively limited by the judiciary, government officials are sanctioned for misconduct, officials in the executive branch do not take public office for private gain, presence of effective complaint mechanisms and fundamental labour rights are guaranteed. The research design is carried out at two levels: a quantitative macro analysis that measures the correlation between the number of positive rulings of inhuman or degrading treatment or punishment and a qualitative micro analysis that measures code instances related to the dependent and independent variables in the Court cases. The macro analysis demonstrated a negative correlation between the adjusted rule of law index and positive rulings of inhuman or degrading treatment or punishment. The micro analysis confirmed this result only for two sub-factors: effective complaint mechanisms and sanctions for misconduct. The conclusions of the research are limited by lack of data and therefore the results need to be interpreted with care.

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Chapter 1: Introduction

1.1 Research goal

Over the last five years, the European Court of Human Rights (ECHR) found around 670 cases that violated Article 3 ECHR. This article can be found in the first section of the Convention for the Protection of Human Rights and Fundamental Freedoms and reads the following: “No one shall be

subjected to torture or to inhuman or degrading treatment or punishment” (European Convention on

Human Rights, 1950). Human rights are one of the core values of the European Union. However, core value or not, there are still human rights violations in the EU. Interesting about the Article 3 violations is that there are countries with a relatively high number of violations (Romania, Greece and Bulgaria) whereas other countries rarely face violations at all (Slovenia, Estonia and the Netherlands). In this research I want to find out what explains the differences in numbers by looking at the application of rule of law in these member states. Rule of law guarantees fundamental rights and values, allows the application of EU law and is also one of the fundamental values the EU is based on (European Commission, 2018a). A strong rule of law requires an effective criminal justice system including prisons that are secure, have respect for the rights of prisoners and are effective in combating backsliding (World Justice Project, 2018a). Without respect for the rule of law, human rights are vulnerable which might lead to positive rulings of inhuman or degrading treatment or punishment. Since the rule of law is a broad term, the focus in this research is on the implementation of the rule of law in the corrective administration. The rule of law and Article 3 violations follow up on each other: in order to prevent positive Article 3 rulings, the rule of law needs to be implemented effectively. There are many different ways to violate Article 3 and in this study I will focus on inhuman or degrading treatment or punishment (hereafter IDTP). The goal of the analysis is to answer the following research question: How does the implementation of the rule of law in the correctional

administration explain the differences in positive rulings by the ECHR on inhuman or degrading treatment or punishment between European member states?

1.2 Academic relevance

The academic implication of this research is that it has made an attempt to contribute to this field of research by trying to explain the causes for inhuman or degrading treatment or punishment. This type of study has not been carried out before which has been a challenges for me as a researcher. The lack of research in the field makes this an important addition to the existing literature and the research also aims to explain differences between EU member states which adds to the existing literature on European integration.

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Börzel et al. (2012) have investigated the different responses of member states after they got caught for violating European law. Some countries tend to settle their non-compliance cases at an early state of the infringement proceedings, whereas other countries sit them out and even do not comply with the rulings of the Court after being convicted (Börzel et al., 2012). This difference between non-compliance and non-compliance can be explained by differences in capacity and power. Capacity, like high bureaucratic efficiency, helps member states to overcome involuntary forms of non-compliance whereas power enables a country to resist compliance even against increasing pressure by EU enforcement authorities (Börzel et al., 2012).

Roper (2017) has analyzed the ECHR rulings between 1998-2005 and focused on non-compliance with the rule of law in post-communist states. His research found that international organizations do not establish aspirational goals but serve as an avenue to codify pre-existing state behavior (Roper, 2017). Applying this theory to the European Union, Roper states the European goals should not be interpreted as goals formulated by the EU but as a collection of goals and aspirations by its member states. Individual member states apply the EU goals in a way that suits them best, which can lead to different national interpretations of the rule of law for example. The existing literature does not explain what causes inhuman or degrading treatment or punishment in European correctional facilities and therefore I want to try to fill up the gap in the academic literature.

1.3 Relevance for governance

Fair and just punishments fall under the concept of quality of governance. Rothstein and Teorell define the quality of government as the impartiality of institutions that exercise government authority (Rothstein and Teorell, 2008). They use the following definition for impartiality: “When implementing

laws and politics, government officials shall not take into consideration anything about the citizen/case that is not beforehand stipulated in the policy or the law” (Rothstein and Teorell, 2008).

The link between quality of governance and the rule of law is inevitable: impartiality implies the rule of law. If judges and civil servants maintain the principle of impartiality and treat each case equal according to the law, the rule of law will automatically be maintained.

The relation between this research and the field of public administration with a special focus on European governance is the importance of the rule of law. Effective rule of law is one of the core principles of the European Union. The academic debate of European governance often mentions that member states from Central and Eastern Europe (CEE) have problems with constitutional and political transformations and therefore also struggle with implementing the rule of law (Pribán, 2009; Roper, 2017; Letnar Cernic, 2018). Hungary and Poland have received lots of media attention recently about non-compliance with European standards for democracy. The Commission has threated to start the

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Article 7 TEU procedure, which in the worst case can strip a member state from its European voting power. Sedelmeier (2014) has carried out extensive research on the topic of European integration and compliance with EU legislation. Sedelmeier (2014) studied the 2012-2013 intervention of the European Committee in Hungary and Romania. The EU did not start Article 7 procedures, but used a combination of different measures like social pressure, infringement procedures and issue linkage. The measures were more useful in Romania than Hungary, because Romania was more vulnerable to the effective use of social pressure than Hungary (Sedelmeier, 2014).

Börzel and Sedelmeier (2017) found that new member states comply better with EU law than old member states. The compliance of the new member states is a result of the pre-accession conditionality in the Eastern enlargement round (Börzel and Sedelmeier, 2017). This is an interesting finding because it contradicts with the statement at the beginning of the paragraph which stated that CEE member states that joined the EU in 2004 and 2007 have problems with implementing the rule of law. There are differences between CEE member states when it comes to both positive rulings of inhuman or degrading treatment or punishment and the application of rule of law in correctional facilities. I will further reflect these differences in chapter 2.

1.5 Structure of the research

The research is structured the following way: the next chapter sets out the literature review and theoretical framework. Inhuman or degrading treatment or punishment will be discussed in more detail together with the concept of rule of law and its translation into this research. Chapter 2 will also set out the research question and the hypotheses for the research. In chapter 3 I will elaborate on the research design and data collection. I will use a mixed model design that consists of a quantitative macro analysis and a qualitative micro analysis. It all builds up to chapter 4 where the results of both analyses will be presented. Eventually the results will be discussed in chapter 5 where the hypotheses are being confirmed or rejected. The research ends with a conclusion where the research question will be answered and the main implications of the research are presented.

Chapter 2: Literature review and theoretical framework

Criminal punishments are carried out by judges and prosecutors who cannot avoid errors of justice, even criminal justice administrations in full democracies that are protected by basic rights make mistakes.1 Miscarriages of justice are the result of punishment gone wrong, however academics use

1_{According to Rawls the characteristic mark of imperfect procedural justice is that while there is an}

independent criterion for the correct outcome, there is no feasible procedure which is sure to lead to it (Rawls, 1999).

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different terminologies and explanations. Huff and Killias use the term miscarriages of justice as an umbrella concept for the violations of procedural rules, errors in the interpretation of relevant laws, excessive sentences and the failure to convict the guilty person (Huff and Killias, 2008). According to Naughton there are several types of miscarriages of justice: wrongful conviction of the factually innocent or wrongful acquittal of the factually guilty, convictions repressed by the appeals system because they are deemed unsafe or conditions that thought to have been obtained in breach of due process or human rights regardless the convicted is innocent or guilty (Naughton, 2013). Naughton makes a distinction between miscarriages of justice and abortions of justice. Miscarriages of justice refer to wrongful convictions that are due to unintended actions of actors in the criminal justice system that occur from time to time in any justice system whereas abortions of justice occur when actors knowingly and intentionally cause wrongful convictions (Naughton, 2013, p.29). Abortions of justice occur when police officers and prosecutors show disregard for the presumption of innocence as they intentionally breach statutory safeguards and codes of conduct that were set up to protect against wrongful convictions.

Even in the European Union, well-known for its human rights protection, miscarriages of justice occur. In the last five years the European Court of Human Rights (hereafter the Court) revised 204 cases that violated Article 3 of the ECHR (European Court of Human Rights, 2017a). Article 3 ECHR states that no one shall be subjected to torture or to inhuman or degrading treatment or punishment (Council of Europe, 1950). The article preserves one of the most fundamental values of democratic society. The Court holds states accountable for violations of human rights obligations. The scope of cases under Article 3 vary from conditions of imprisonment to expulsion. In cases of expulsion, Article 3 even applies for cases of inhuman or degrading treatment or punishment abroad if the applicant resides in a member country of the ECHR. For example in Jabari v. Turkey (2000) the applicant had committed adultery in Iran, which is a crime under Iranian law for which she was liable to be sentenced to death by stoning (Jabari v. Turkey, 2000). The Court requires states to ensure that any person who is detained is held under conditions that are compatible with respect for human dignity (Erdal and Bakirci, 2006, p.129).

Besides protecting human rights, two other core elements of democratic constitutional states are respect for the rule of law and democracy (Snacken, 2010). Rule of law guarantees that societies are governed by rational and impersonal laws and implies that the government is accountable for its actions which therefore should be controllable and transparent (Snacken, 2010). Human rights and rule of law go hand in hand and both are important contributors for the freedom to live in dignity. Human rights and the rule of law have a indivisible and intrinsic relationship (United Nations, 2018). This

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study brings human rights and rule of law together by investigating the relationship between positive rulings of IDTP and the implementation of rule of law in European correctional facilities.

2.1 European Convention on Human Rights

In the aftermath of the Second World War, international and European effort has been done to create transnational laws that protect human dignity and guarantee fundamental human rights. In 1948 the Universal Declaration of Human Rights (UDHR) was signed. One year later Western European governments met in London to sign the Treaty of London which gave birth to the Council of Europe (Van Zyl Smit and Snacken, 2009, p. 9). In 1950 the establishment of the Council of Europe was completed by the adoption of the European Convention on Human Rights (ECHR) that was based on the UDHR. The fundamental thought behind the ECHR was to ensure rule of law and liberty for all Europeans. Section 1 of the ECHR sets out the basic rights of the ECHR including the prohibition of torture and inhuman or degrading treatment or punishment, but also fundamental rights like the right to life and the right to fair trial (European Court of Human Rights, 1950). The focus of this research will be on Article 3 that reads the following: No one shall be subjected of torture or to inhuman or

degrading treatment or punishment (ECHR, 1950). The ECHR came into force in 1953 and its

implementation was observed by the European Commission of Human Rights and the European Court of Human Rights (Van Zyl Smit and Snacken, 2009, p. 10). The Convention creates legal obligations under international law in a way that it is mandatory for domestic courts and public authorities to apply its provisions (Reidy, 2002). At that time all the 47 countries that belonged to the Council of Europe signed the deal, but the ECHR was still a stand-alone human rights instrument that could not provide enough support for European prisoners.

This changed in the 1980s by the foundation of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereafter CPT). The CPT consists of one member of each state party and functions as an important spill in the functioning of the entire Convention (Van Zyl Smit and Snacken, 2009). The core function of the CPT is to examine the treatment of persons deprived of their liberty with a view to strengthening the protection of such prisoners from torture and from inhuman or degrading treatment or punishment (Council of Europe, 2002). However, it is not the task of the CPT to interfere with the ECHR as protectors of Article 3. The CPT visits places of detention to check the circumstances of those deprived of liberty in for example prisons. After each visit a report is filed to the State concerned which includes the CPT’s findings, recommendations, comments and requests for further information (Council of Europe, 2018b). As the full name of the committee already suggest, the CPT is concerned with both torture and inhuman or degrading treatment or punishment.

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2.2 Article 3 ECHR: Inhuman and Degrading Treatment or Punishment

Regulations of prisons and the rights of prisoners have changed drastically over the centuries. French philosopher Michel Foucault has been an important contributor in the field of punishment styles. In his book Discipline and Punish: The birth of the Prison he gives examples of two different styles of punishment. The first one is a violent public execution in 1757 of a regicide in Paris and the second situation describes an institutional timetable to regulate the daily lives of inmates taking place 80 years after the public execution (Garland, 1986). The different punishment styles can be explained by the shift in the target of the punishment. Foucault wants to illustrate a change in the character of justice which shifting from the crime itself to understanding the sources of his criminality and to correct them if possible (Garland, 1986). A tour in the Gevangenpoort of the Hague, a medieval prison in front of the Dutch government, shows how the Dutch prison system has changed over the centuries. In 2018 it is hard to imagine that prisoners used to be publicly executed or locked up in a cell without daylight in the company of many other prisoners. The goal of the corrective administration has changed over the centuries. With the abolition of the death penalty, the most severe sanction in Europe is imprisonment. The change of different punishment regimes and the uprising of human rights logically add up to the protection of prisoners’ rights that are lied down in both international as in European human rights codes. Besides international and national legislation that safeguard the rights of prisoners, there are numerous NGOs that protect prisoners as well like Amnesty International, Human Rights Watch and Penal Reform International. Most European countries have an office of the Helsinki Committee, which promotes human rights and rule of law throughout Europe.

It is important to mention that Article 3 aims to protect every individual that could be subjected to torture, or to inhuman or degrading treatment or punishment (UNCHR, 2003). There are no circumstances in which violations of Article 3 can be tolerated, not even in the fight against terrorism or organised crime (Murdoch and Roche, 2013). The scope of the Article varies in a way that it can be applied to the protection of refugees or in most cases for the protection of prisoners. Member states have to make sure that there is no torture in the legal system, the treatment and punishment is humane and the subjects receive effective investigations. In a more practical wording this means that the prison conditions are adequate and member states are aware of the criminal procedures.

It is hard to assess the suffering and humiliation that goes beyond the form of legitimate treatment or punishment, since criminal justice imposes an inevitable amount of suffering or humiliation on the suspect (Mavronicola, 2015, Erdal and Bakirci, 2006, p. 128). Although I have to mention that stating that criminal justice imposes an inevitable amount of suffering is controversial. Poama (2015) presented an interesting perspective with valid arguments that exposed the flaws of the legal punishment definition. The afflictive definition of punishment is flawed in three ways: it is ambiguous,

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inaccurate and non-operationalizable (Poama, 2015). To avoid the problem of defining legal punishment, Poama presents an alternative definition that replaces suffering with sanctions. The suffering and humiliation depends on the individual facts and circumstances of the case. For example in the Chember vs. Russia case the applicant was asked to perform a number of knee bends even though the officials were aware of the severe knee-related health problems of the applicant (Mavronicola, 2015).

There is a large variety of complaints of alleged violations of Article 3 that differ from ill-treatment in police custody, inhuman or degrading detention conditions to inhuman treatment in the deportation of a deportee to a third state (Reidy, 2002). However, not all types of ill-treatment fall under the scope of Article 3. The ECHR has made it clear that the ill-treatment must attain a minimal level of severity before it falls under the scope of Article 3 (Reidy, 2002). The case Ireland v United Kingdom functions as a good example that defines the threshold of inhuman and degrading treatment. Suspected members of the IRA were interrogated by the Northern Ireland Government in the 1970s. The Northern Ireland Government that falls under the sovereignty of the United Kingdom used several interrogation techniques including deprivation of sleep, food and drink, wall standing and hooding (keeping a bag over detainees heads at all times). According to the ECHR the techniques caused intense physical and mental suffering but did not necessarily to bodily injury. Therefore the Court rejected the notion of torture but did find that the use of the techniques involved inhuman and degrading treatment according to Article 3 (Ireland v The United Kingdom, 1977).

According to the ECHR, there are a number of different categories where Article 3 can apply to: degrading punishment, degrading treatment, effective investigation, expulsion, extradition, inhuman punishment, inhuman treatment, positive obligation and torture (Council of Europe, 2018a). In this

Degrading punishment 1% Degrading treatment 38% Effecitive investigation 17% Expulsion 3% Extradition 1% Inhuman punishment 1% Inhuman treatment 34% Positive obligations 2% Torture 3%

Types of Article 3 violations

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research I will focus on inhuman or degrading treatment or punishment (hereafter IDTP) because they distinctly apply to the administration of criminal justice which is the underlying topic of the research. Expulsion, extradition, effective investigation, positive obligation and torture have a higher chance to take place in the pre-trial stage and therefore the link with the correctional services cannot be made. 74 percent of all Article 3 violations involve IDTP (see figure 1) and therefore IDTP will be the focus in this research.

What does the ECHR actually mean with IDTP? Let me begin by explaining what is meant with inhuman or degrading. Ill-treatment that does not have sufficient intensity or purpose to fall under the scope of torture will be classified as inhuman or degrading (Reidy, 2002). Punishment or treatment is considered degrading when the object of the treatment is to humiliate the person concerned and thereby adversely affect his or her personality(Reidy, 2002). A good example is the case Tyrer v. the

United Kingdom (1978) where the Court stated that the punishment which the applicant complained of

beating amounted to inhuman and degrading punishment. In the judgment, the Court stated the following:

“… although the applicant did not suffer any severe or long-lasting physical effects, his punishment –whereby he was treated as an object in the power of the authorities– constituted an assault on precisely that which it is one of the main purposes of Article 3 to protect a person’s dignity and physical integrity” (Tyrer v. the United Kingdom, 1978,

paragraph 33).

The decision of the Court when something falls under the scope of Article 3 is relative and depends on individual factors of the case like the age or health condition of the victim. The distinction between inhuman and degrading is qualitative: the term ‘inhuman’ is linked to the infliction of suffering whereas ‘degrading’ refers to a situation where severity stems from the humiliation caused (Mavronicola, 2015). The use of excessive force in a prison falls under the scope of inhuman treatment whereas the subjection of a disabled person to standard imprisonment is called degrading treatment. Some prisons are more survivable than others. According to Liebling (2011a) staff-prisoner relationships are an important determinant of how prisoners evaluate their treatment (Liebling, 2011a). Another distinction can be made between treatment and punishment. Three quarters of all Article 3 violations between 1971-2018 concern a form of inhuman or degrading treatment (see figure 1). It is hard to find literature that explains the definition of treatment or punishment without mentioning inhuman or degrading. When it comes to punishment, the Court finds a violation of Article 3 when the type of punishment goes beyond the inevitable element of suffering and humiliation which is inherent in any form of criminal punishment (Erdal and Bakirci, 2006; Mavronicola, 2015). Treatment regards how the corrective administration deals with prisoners. Inhuman treatment involved intense physical

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and mental suffering, whereas degrading treatment concerns treatment that aroused feelings of fear and inferiority capable of humiliating and debasing detainees (Van Zyl Smit and Snacken, 2009, p.16). Imprisonment has to be used as a measure of last resort. The reductionist penal policy traces back to the European human rights and have a strong intolerance of prison overcrowding (Van Zyl Smit and Snacken, 2009, p. 87). The ECHR has pointed out that overcrowded conditions like sharing cells which are not fit for sharing or overcrowded insanitary conditions constitute inhuman and degrading treatment and thus a violation of Article 3 ECHR (Council of Europe, 2016a). The European Union has set out certain rules and requirement that prisons have to meet, these rules are based on the rights prisoners should have in constitutional democracies. The European Court of Human Rights, the Committee for the Prevention of Torture and the recommendations of the Council of Europe offer direct guidance on the material conditions of imprisonment (Van Zyl Smit and Snacken, 2009, p. 126). Accommodation standards are stationed at the heart of these material conditions. For example, the absolute minimum requirement for a shared single cell is six square meters and the cell must also have access to fresh air and include a window that gives enough light so prisoners can read and write in daylight (Van Zyl Smit and Snacken, 2009, p.130-132). It is important to mention that the minimum cell requirement is developed by the CPT and cannot constitute a conclusive argument by the ECHR, because the CPT only has an advisory function and no legislative role. The second area of material conditions is hygiene. According to the CPT, the maintenance of good standards on hygiene are essential components of a humane environment (Van Zyl Smit and Snacken, 2009, p. 140). Interesting is that in a couple of cases hygiene standards were used by the authorities to cover for interventions that had an direct effect on the hygiene of prisoners, for example by arguing that shaving the heads of prisoners was justified on hygienic grounds. The ECHR found in the Yankov v Bulgaria (2003) case that this is in fact degrading treatment and thus a violation of Article 3 (Yankov v Bulgaria, 2003). The third area that is important for prisoners are clothing and bedding. The European Prison Rules (EPR) state that clothing needs to be suitable for the climate and should not be degrading or humiliating (Van Zyl Smit and Snacken, 2009, p. 144). The fifth condition sets outs requirements for nutrition. Obviously prisoners needs to be feed properly and a failure to do so opens a claim for IDTP (Van Zyl Smit and Snacken, 2009, p. 145). The CPT also investigates whether the authorities follow the national legislation regarding the nutritious diet of prisoners. The last condition is a rather complex one as it regards the health of prisoners, because the deprivation of liberty makes prisoners already more vulnerable towards physical and mental health issues. The EPR, CPT and the World Health Organization provide guidance on how health in prisons should be guaranteed (Van Zyl Smit and Snacken, 2009, p. 147). An inadequate level of health care can lead rapidly to situations falling within

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the scope of IDTP and therefore prisoners should for example have access to a doctor (Council of Europe, 2006b).

The European Court of Human Rights, the Council of Justice and the Committee for the Prevention of Torture bundle their efforts make sure that human rights, especially Article 3 ECHR, are imposed on prisoners as well. Unfortunately there are still numerous cases that involve IDTP. The question is which factors contribute to positive rulings of IDTP?

2.3.1 Rule of Law

The Rule of Law is one ideal in an array of values that dominate liberal political morality: others are democracy, human rights, social justice and economic freedom (Waldron, 2016). Article 2 of the Treaty of the European Union (TEU) reads that the EU is founded based on the shared values of democracy, the rule of law and respect for fundamental rights (European Parliament, 2018). The concept of rule of law has added to the political tradition for millennia, its heritage traces back to Aristotle. Aristotle questioned whether it was better to be rule by the best man or the best laws, and he concluded that laws are made after long consideration and are therefore safer than the rule of men (Waldron, 2016).

The European Commission defines the rule of law by principles of legality: legal certainty, prohibition of arbitrariness of the executive powers, independent and impartial courts, effective judicial review including respect for fundamental rights and equality before the law (European Commission, 2014). What makes the rule of law so important for constitutional democracies? The rule of law is a requirement for membership to the EU and necessary for the mutual trust between member states (European Commission, 2014). All EU citizens and their national authorities need to have faith in the legal systems of all EU member states in order to enjoy the single market benefits. There is an intrinsic link between respect for the rule of law and the rule for fundamental rights, because fundamental rights can only function when their legal status is respected by the rule of law.

Unfortunately, over the last years, the European Commission faced situations in EU member states that seriously have threatened the rule of law in Europe especially in Central Eastern and Southern member states (Schout and Luining, 2018). Most of the countries in this region won their freedom back in 1989 and are therefore much younger democracies than Western European countries. Older member states can cope more successfully with attacks on liberal institutions because they are more developed in tradition of independence and professionalism, but if these institutions are weak and underdeveloped there is a potential danger to ‘illiberal democracy’ (Bugaric, 2008). The EU helps Bulgaria and Romania after their accession in order to deliver the obligations of EU membership and ensure correct application of EU law, policies and programmes (European Commission, 2018b). More than a decade has passed since Bulgaria and Romania joined the EU which indicates that there are still

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shortcomings in the area of judicial reform and combating corruption. The political situation in Poland and Hungary has caused significant attention over the last year. In July this year the Commission launched infringement procedures because the new legislature for Poland’s Supreme Court undermines the principle of judicial independence (Teffer, 2018). Hungary adopted legislation that strengthens political control of the judiciary and threatens human rights activists (Buras, 2018). When a member state seriously breaches the rule of law or other common European values, the Council can suspend certain membership rights of the particular state as is set down in Article 7 TEU (European Parliament, 2018). Activating the Article 7 procedure is often referred to as the ‘nuclear option’, because it can strip a member state from its voting rights in the Parliament.

This research investigates the link between the rule of law and positive rulings of IDTP. Human rights have no power when the rule of law is not enforced: they are intrinsically connected. When liberal legal institutions are constantly attacked and disrespected, it will seriously undermine their capacity to protect human rights (Bugaric, 2008). Within prisons, the rule of law entails rational and impersonal laws that protect prisoners against arbitrary and emotional commands (Van Zyl Smit and Snacken, 2009, p.67).

2.3.2 Adjusted Rule of Law Index

There are various databases that measure the rule of law, for example the Varieties of Democracy database, the Sustainable Government Indicators or the World Justice Project database (Dahlberg et al., 2018). The World Justice Project has developed a rule of law index that measures the rule of law in 113 countries. The index relies more than 110,000 household and expert surveys that measure how the rule of law is experienced and perceived in the everyday life around the world (World Justice Project, 2018b). The purpose of such a global indicator is to make state characteristics measurable and comparable across national borders (Bradley, 2015). The index is unique because it has 8 factors that are further divided into 44 sub-factors. For this research I created an adjusted rule of law index, there are two main reasons why I chose to adjust this. The first reason why the index had to be adjusted is because some of the sub-factors had serious overlap with the dependent variable, they directly measured the chance of human rights violations or the probability that violence was used by public officials. This cannot be included in the research because it will bias the results. The second reason for adjustment is the broad scope of the Index. The rule of law is a broad concept, but does not help to find out the causal relationship between positive rulings of IDTP and the implementation of the rule of law in the correctional administration. To make the index more suitable for this research, I selected only the sub-factors that have a strong theoretical link with the research topic. Before I introduce the five sub-factors that will be used, let me explain the full scope of the index first.

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(1) Constraint on government powers: measures the extent to which those who govern are bound by law on both institutional and constitutional level. This factor is divided in the following sub-factors that measure whether government powers are effectively limited by (1.1) the legislature, (1.2) the judiciary, (1.3) independent auditing and review, whether (1.4) government officials are sanctioned for misconduct and (1.5) subject to non-governmental checks. It also examines whether (1.6) the transition of power is subject to the law. Only sub-factors 1.2 and 1.4 will be included in the research, because the other sub-factors have a constitutional nature which does not fit with the executive focus of this paper.

(2) Absence of corruption: measures the absence of corruption in a number of government agencies. The WJP defines corruption as using public office for private gain. The factor considers three forms of corruption: bribery, improper influence by public of private interests and misappropriation of public funds or other resources. The Index measures this in the following government agencies: (2.1) government officials in the executive branch, (2.2) government officials in the judicial branch, (2.3) government officials in the police and military and (2.4) government officials in the legislative branch. This research is focused on the correctional administration which falls under the executive branch, therefore only sub-factor 2.1 is used for this research.

(3) Open government: measures open government which is defined as a government that shares information, empowers people to hold the government accountable and motivates citizen participation in public policy debates. This factor is measured by four sub-factors that investigate whether (3.1) laws and government data are publicized and (3.2) the right to information is granted, (3.3) the effectiveness of civic participation and whether (3.4) there are effective complaints mechanisms in place. Only the last sub-factor will be included in the research because there is no theoretical link with the other three sub-factors and the research question.

(4) Fundamental rights: measures the overall protection of fundamental human rights. A system that does not respect human rights does not deserve to be called a rule of law system (World Justice Project, 2018). The factor encompasses adherence to the following fundamental rights: (4.1) equal treatment and absence of discrimination, (4.2) right to life and security of the person is effectively guaranteed, (4.3) due process of law and rights of the accused, (4.4) freedom of opinion and expression, (4.5) freedom of belief and religion, (4.6) freedom from arbitrary interference with privacy, (4.7) freedom of assembly and association and (4.8) fundamental labour rights are effectively guaranteed. Sub-factors 4.1 till 4.7 cannot be used in the research because they have an overlap with the dependent variable. Sub-factor 4.8 is of interest because it can apply to the labour rights of correctional officers.

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(5) Order and security: measures how well security of persons and property is guaranteed by the society. This factor includes three sub-factors that can form a threat for the order and security within the society which are (5.1) crime, (5.2) civil conflict and (5.3) resort to violence to redress personal grievances. This factor is mainly concerned about order and security within the society which does not make a link with the correctional administration, therefore no sub-factor is included in the adjusted rule of law index.

(6) Regulatory enforcement: measures the extent to which regulations are fairly and effectively implemented and enforced. This is measured by looking at how (6.1) government regulations are effectively enforced and (6.2) applied and enforced without improper influence, (6.3) administrative proceedings are conducted without unreasonable delay, (6.4) due process is respected in administrative proceedings and whether (6.5) the government does not expropriate without adequate compensation. This factor has no theoretical link with the research question because it looks into the administrative and legal function of the government which does not link with the executive branch central to this paper.

(7) Civil justice: measures whether ordinary people can peacefully and effectively resolve their

grievances through the civil justice system. Requirements for effective civil justice are (7.1) accessibility and affordability, (7.2) free of discrimination, (7.3) free of corruption, (7.4) free of improper government influence, (7.5) no unreasonable delays, (7.6) effective civil justice enforcement and (7.7) Alternative Dispute Resolution mechanisms are accessible, impartial and effective. Since the research is centralized on the administration of the criminal justice system, the civil justice system is not of interest and will not be taken into account.

(8) Criminal justice: this factor has some similarities with the previous factor, however this one looks into the criminal justice system. An effective criminal justice system constitutes the conventional mechanism to redress grievances and take action against individuals who caused offenses against society. The different sub-factors measure whether (8.1) criminal investigation is effective, (8.2) criminal adjudication is timely and effective, (8.3) the correctional system is effective in reducing criminal behaviour, the criminal justice system is (8.4) impartial, (8.5) free of corruption and (8.6) free of improper government influence. Also (8.7) the due process of law and rights of the accused needs to be protected. Like factor four, the criminal justice factor interferes directly with the dependent variable and cannot be used for the research.

The adjusted rule of law factors only include the sub-factors that have a strong theoretical link with the dependent variable. The theoretical background of these sub-factors is discussed below.

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1.2 Government powers are effectively limited by the judiciary.

The first two sub-factors included fall under the theme constraint on government powers. A system of checks and balances of constitutional power is necessary for the functioning of democratic states. Checks and balances within the executive, legislative and judicial branches are necessary to constrain one branch from abusing its power. An independent judiciary and constitutional review work as a judicial check on the abuse of power by other branches of government (Holcombe, 2018). The judiciary can limit the power of other branches in two ways: the separation between the creation of laws and the administration of justice and secondly by subjecting law-making and policy-making subject to court review (Holcombe, 2018). The correctional administration falls under the executive branch and has to comply with the national and European legal standards for imprisonment. The establishment of the ECHR, the CPT and the European Prison Rules have imposed a challenge for the judicial enforcement of the acceptable prison conditions (Foster, 2009).

Sub-factor 1.2 measures whether government powers are effectively limited by the judiciary. This is relevant for the research because it investigates to which extent the judiciary limits the actions of the executive branch. To be more specific the sub-factor indicates how serious court rulings are taken by the executive branch and how free courts are from political power. The more independent the different branches of government are, the lower the number of positive rulings of IDTP will be. When there are more checks and balances in place, there is a higher chance that the judiciary will intervene in the government powers before the punishment or treatment becomes inhuman or degrading. First of all the executive branch will feel obliged to comply with the existing legislation to avoid intervention from the judiciary branch. Secondly, when the judiciary effectively intervenes in the correctional administration and their concerns are transferred into operative remedies there is smaller chance that cases of IDTP occur. Therefore the following hypothesis can be set:

H1: Effectiveness of institutional checks carried out by the judiciary lowers the number of positive

IDTP rulings by the ECHR.

1.4 Government officials are sanctioned for misconduct.

Sub-factor 1.4 is the second sub-factor that falls under constraint on government powers and measures whether government officials are sanctioned for misconduct. This is relevant for the research since logically a higher chance of being sanctioned will reduce the ill-treatment by correctional officers. Worley and Worley (2011) have investigated the deviant behaviour between correctional officers and prisoners. The contact between correctional officers and prisoners can lead to brutality towards prisoners, sexual harassment or the provision of dangerous items like drugs or alcohol (Worley and

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Worley, 2011). Prison work is all about the use of power and authority which is deployed through human relationships (Liebling, 2011b). Correctional officers need to be aware of the legitimate use of power and use their authority only when confronted with established rules and values. If this is not the case, there is a high chance that they will misconduct their power leading to IDTP. The Stanford Prison Experiment that took place in 1971 showed that even ‘good’ people are able to use violence under circumstances of institutional power (Konnikova, 2015). Thirty years later the study seems to make sense of the cruel behaviour of American guards in the Iraqi Abu Ghraib prison (Specter, 2006). These two examples show how punishment can go wrong when officials misuse their authority. In the end the state is responsible for the behaviour of correctional officers. To prevent abuse, the use of force can be controlled through the consistent imposition of progressive and proportional punishment when excessive force is used (Specter, 2006). I am aware of the fact that positive rulings of the Court can also be seen as a sanction and overlaps with the dependent variable. However, the variable of the rule of law index only measures the sanctions at national level and not at European level. Besides that, the WJP assumes that the sanctions are applied on individuals and not on the national state.

When correctional officers are being sanctioned for the misconduct and misuse of their authority, they will be more hesitant to use force. On the other hand, there is also a chance that an effective sanction mechanism exposes the misconduct which may lead to an increasing number positive IDTP rulings. To investigate the relationship I will test the following hypotheses.

H2: Effective sanction mechanisms for misconduct lowers the number of positive IDTP rulings.

H3: Effective sanction mechanisms for misconduct increases the number of positive IDTP rulings.

2.1 Government officials in the Executive Branch do not use public office for private gain.

The United Nations Office on Drugs and Crime reported that prisons are one of the key justice sector institutions characterized by a specific vulnerability to acts of corruption (UNODC, 2018). The prospect of losing freedom creates powerful incentives for defendants to resort to bribery and for those holding power over their fates to engage in extortion (Hill, 2015). There are two labels that can be assigned to the conduct of public officials: professionalism and corruption. Professionalism inspires workers to excel in whatever they do and corruption reinforces the instinctive urges to violate, grab, fabricate (Souryal, 2009). Both practices originate within the workers’ mental and emotional state. Corrupt acts variate from small acts like theft of products, exchanging sexual favours between correctional personnel and inmates but can also lead to violence and abuse (Souryal, 2009).

Sub-factor 2.1 measures weather government officials in the Executive Branch do not use public office for private gain. In almost every country that is included in the research falls the prison administration

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under the Ministry of Justice (World Prison Brief, 2018). The only exception is Hungary where the prison department falls under the Ministry of Interior, which still falls under the executive branch. When correctional officers do not use public office for private gain, there is a lower chance of positive rulings of IDTP because officers have a more professional, rule-abiding mentality. This will be tested with the following hypothesis:

H4: Government officials in the executive branch who do not take public office for private gain has a negative relation with the number of positive IDTP rulings.

3.4 Complaint mechanisms

The ECHR is created to guarantee basic human rights and IDTP is a human rights violation. A case can be brought forward to the European Court of Justice when one of the Articles is violated. However, the domestic remedies have to be exhausted first before a case can be solved at European level. At national level the complaint can be sent to an ombudsman. Effective complaint mechanisms are important because they offer a channel to provide feedback on the quality of a service provided. It is relevant for the research to measure the access that citizens have to complaint mechanisms regarding the quality of the correctional service which impacts the number of positive IDTP rulings. Complaints about infringements of human rights (for example IDTP) can be brought in by states who are parties to the Convention and by individuals who allege that their rights have been infringed (Van Zyl Smit and Snacken, 2009, p.10). Applicants have to try and resolve the issue at national level first before the Court will give their judgment.

Sub-factor 3.4 of the rule of law index measures whether people can bring specific complaints to the government, which can also be applied to prisoners who can file complaints about their circumstances or the behaviour of correctional officers. The more effective complaint mechanisms are, the more complaints can be filed at the European level. The expected relationship between effective complaint mechanisms and positive Article 3 rulings is the following:

H5: Effective complaint mechanisms have a positive relationship with the number of positive ECHR rulings.

4.8 Fundamental labour rights are effectively guaranteed

Working conditions and labour agreements have an impact on the behaviour of corrective officers. When correctional officers have the right to form labour unions, these unions can for example ensure higher wages that makes working in the correctional service more attractive to recruits (Bozelko,

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2015). This helps to reduce the workload of the correctional officers in overcrowded prisons. At the same time, research in the United States has shown that the link between the incarceration rate and prison officer unions is complicated because a reduction of the incarceration rate would lead to job loss for the officers (McCoy, 2017). Sub-factor 4.8 measures whether labour rights are effectively guaranteed. When correctional officers have the ability to form an union which will improve their working conditions, the circumstances in prisons regarding overcrowding might improve. In turn, this will lead to a lower number positive IDTP rulings. The following hypothesis will test this relationship: H6: Effective guarantee of fundamental labour rights has a negative relation with the number of positive Article 3 rulings.

These five measurements are called the adjusted Rule of Law Index and measure the independent variable in this research which is the rule of law in the corrective administration. Figure 2 gives a comprehensive overview of the factors that are used in the adjusted rule of law index and their expected relation with the dependent variable. I will test these variables in twelve EU member states which are Bulgaria, Czech Republic. Estonia, France, Germany, Greece, Hungary, Italy, Netherlands, Poland, Romania and Slovenia. The reason why I selected these countries will be discussed in the next paragraph. The time frame of the research will be the period between 2013-2017, because this is the period in which the rule of law was measured and this time frame also makes sense when we look at European integration.

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Positive rulings of

Inhuman and Degrading

Treatment or

Punishment

1.2 Government powers are

limited by the judiciary

1.4 Government officials are

sanctioned for misconduct

3.4 Effective complaint

mechanisms

2.1 Executive officers do not

take public office for private

gain

4.8 Fundamental labour

rights are guaranteed

-

+/

--

+

-

Figure 2 Relation between the adjusted rule of law index and the dependent variable. (+) indicates a positive relation and (-) indicates a negative relation predicted

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2.4 Corrective administrations in Europe

In this research will focus on twelve different EU member states that I selected during the case orientation phase. In this section I will briefly discuss the background of the corrective administration in the countries of interest and explain why I included these member states instead of others. To get a completer picture of the performance of all EU 28 member states, the graph below shows the number all positive rulings of IDTP between 1971 and 2018.

Figure 2 Positive rulings of IDTP. Source: HUDOC

Looking at the graph, the first thing that strikes is that Romania, Greece and Bulgaria have much higher number of positive rulings of IDTP than the rest of the countries. Poland, France and Italy follow and other countries like Czech Republic, Ireland or Denmark have barely any violations at all. Romania and Bulgaria abandoned socialism in 1989 and 1990 respectively and entered the EU in 2007. Both countries faced difficulties in the transitioning process with for example independent judiciary and the fight against corruption and therefore the EU supports them via the Cooperation and Verification Mechanism (CVM). The prison conditions in Romania are harsh and have problems of overcrowding (APADOR-CH and Prison Insider, 2015). The CPT also identified many shortcomings during their visit to Bulgarian prisons, especially in the treatment and detention conditions of persons held at investigation detention facilities and prisons (CPT, 2015). Since both countries have a high number of violations I decided to include these countries.

178 82 65 35 31 25 20 20 17 16 15 12 9 7 6 5 5 5 5 4 4 3 2 1 1 0 0 0 Ro m an ia G re e ce Bu lgari a Po lan d Fran ce It aly La tv ia H u n gary Be lgi u m U n ite d K in gd o m Croa tia Lith u an ia N eth erl an d s Cyp ru s Slov en ia G erm an y Es to n ia Slov ak ia Sp ain Ma lta Sw ed e n Au stria Cze ch Rep u b lic Ire lan d Finla n d De n m ar k Lu xe m b o u rg Po rtu gal

Positive rulings of inhuman or degrading treatment or

punishment between 1971-2019

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Another country with a high number of violations is Greece, a country that joined the EU in 1981 after having thrown of military dictatorship. Greek prisons are suffering from an increase in the prison population which leads to overcrowding (Koulouris and Aloskofis, 2013).

Central and Eastern European countries have different positions in the chart: Poland, Latvia, Hungary, Croatia and Lithuania have more than 10 positive rulings per country whereas Slovenia, Estonia, Slovakia and the Czech Republic have a lower score. Because of the limited capacity in this thesis I had to make a selection of these countries. The two countries that will be included with a high number of positive rulings are Poland and Hungary. Both countries were already mentioned because of their problems with the rule of law. Prisons in Poland deal with the issue of overcrowding and the condition of sanitary facilities is sometimes deplorable (Ejchart-Dubois, 2018). In 2015 the Court ruled that overcrowding in Hungarian prison constituted a form of ill-treatment. I also selected three CEE countries with a lower number of positive rulings: Slovenia, Estonia and Czech Republic. In 2014 the CPT received few allegations of physical ill-treatment in the Czech Republic but the material conditions of the establishment were acceptable (CPT, 2014a). Estonia has, with 250 prisoners per 100,000 inhabitations, a high incarceration rate compared to other Council of Europe member states (CPT, 2014b). Because of the high crime rate the CPT fears overcrowding and encourage the Estonian authorities to pursue non-custodial measures as well. The CPT did not observe any prison overcrowding or ill-treatment of prisoners by correctional staff in Slovenia (CPT, 2017).

There is variety of results between the “original six” or founding EU members. France, Italy and Belgium have a high number of positive rulings on IDTP where the Netherlands, Germany and Luxembourg score better. I chose to include France, Germany, Italy and the Netherlands for this research since France and Italy have a higher number of violations and Luxembourg has no violations at all. Both France and Italy face high incarceration rates and thus problems of overcrowding. Italy has one of the largest prison guard staff in Europe (Antigone, 2017).

Where many countries face problems of overpopulation of prisons, the Dutch incarceration rate decreased with fifty percent between 2006 and 2016 (Smith, 2018). The CPT commission did not receive any allegations of ill-treatment of prisoners in either the Netherlands and Germany where the material conditions are good.

Based on the differences of positive rulings of IDTP between EU member states, the last hypothesis will test the following:

H7: The score of the adjusted rule of law index will have a negative relation with the number of positive rulings of IDTP.

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With the presentation of the last hypothesis this chapter comes to an end. In this chapter I laid down the theoretical framework of the research. Both the dependent and independent variable have been explained. The next chapter sets out the design of the research and explains how the variables are translated into data.

Chapter 3: Research Design

This chapter talks through the research design of the research and consists of multiple parts. First the case selection will be discussed followed up by the data collection. The research will consist of a micro and macro analysis: both will be discussed in detail. Having done that the different types of variables are discussed and operationalized. At the end of this chapter the reader has a clear understanding on how the research is done.

3.1 Case selection

The dependent variable will be measured via the cases of IDTP published by the HUDOC database. This database consist of all the case law of the ECHR. The ECHR falls under the Council of Europe and has 46 member states including Turkey, Russia and Ukraine. Russia and Turkey both face a high level of ECHR violations, but since these countries are no EU member states this will not be the focus of the research. During the case orientation phase, the difference in the number of positive IDTP rulings between EU member states caught my interest. To find out more, I selected all EU member states and looked at their number of Article 3 violations. After this analysis I made a selection of countries that are of interest for this research. First of all, I selected Romania, Greece and Bulgaria because these countries have the highest number of Article 3 violations. Countries that have almost no violations of Article 3 have a similar importance for the research, therefore I selected the Czech Republic, Estonia, Germany, the Netherlands and Slovenia. Furthermore I added four countries that have a relative high number of violations which are France, Hungary, Italy and Poland. The diversity in the political history of these countries triggered me in finding out the reason for the difference in violations. For example some countries from the 2004 enlargement almost have no positive rulings of IDTP whereas other countries do have a high number of violations. To make sure that I used the correct data, I executed an advanced search that selected only cases that violated Art. 3. Most cases are published multiple times in different languages and therefore I selected cases that are only written in English, in order to avoid the double counting of some cases. Much later in the research I found out that this selection still led to cases written in French, more about this will be explained below. Since the research is focused on the EU, I only selected data from European member states. In Appendix A

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an overview can be found of all the data I used for the research and in the references a list of the used cases per country can be found.

3.2 Data collection

3.2.1 Data sources

This research aims to identify the causes of IDTP by analysing cases published by the ECHR. The largest data source in the research is therefore case law from the ECHR. This consists of 203 cases that took place in the period 2013-2017. The ECHR publishes all cases in English or French which can be downloaded in pdf-file from their website. Unfortunately fifty percent of the cases in my data selection is only published in French. Although these cases contain important information for the research, I decided to drop them from my research and focus on the 101 cases that are written in English. Translating the French cases to English will not do justice to the legal jargon that is necessary for the study and I believe that the English cases on its own serve as a representative sample of reality. I am aware of the fact that this decision limits the results of the research, which I will further discuss in paragraph 3.3.

A possible secondary source is the database where all the reports from the CPT (Committee for the Prevention of Torture). The CPT carries out unplanned visits to prisons, but also other facilities like psychiatric establishments and detention centres member states. After these unplanned visits a report is filed that describes the circumstances in the prison. These reports could offer a detailed explanation for the number of positive rulings of IDTP. Unfortunately there is no space in this thesis to add these reports, but they are helpful background tool to understand the circumstances of the correctional facilities.

The adjusted rule of law index can be derived from the website of the World Justice Project. The data is published in an excel document which makes it easy to exclude the countries and sub-factors that are not relevant for the research. The only limitation of the adjusted rule of law index is that sub-factor 3.4 Effective complaint mechanism has only been added to the Index from 2015 onwards. This leads to a limited interpretation of the results, but since I will work with an average rule of law index the available data can be used in the research.

For the control variables I will include data from different sources. The main contributor is Eurostat, the statistics database of the European Union. I derived the data that I used for the GDP, prison expenditure, number of prisoners and the prison occupancy rate from Eurostat. The only limitation of the Eurostat database is that the prison occupancy rate is only published until 2016.

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3.2.2 Time frame

The time frame of the research is the period between 01.01.2013 and 31.12.2017. The reason why I selected this specific time frame is mainly base on the availability of the rule of law index. The World Justice Project only started to measure the rule of law index from 2013 onwards. I am aware that an older and more extensive period in time would have resulted in a more reliable result, but there is a reason why I decided to stick with the rule of law index and thus the period between 2013-2017. The main reason that I chose for the Rule of Law Index to represent the independent variable and not another rule of law indicator is because the Rule of Law Index is by far the most complete Index in the field. Voigt (2012) tested how to measure the rule of law and came up with eight different dimensions to measure the rule of law that overlap with the Rule of Law Index. The different themes of the rule of law index also overlap with the rule of law principles of the Commission. The index published by the World Justice Project consists of 44 different sub-factors and it is relatively easy to detract the relevant data. The Sustainable Government Indicators Index measures the rule of law solely on legal certainty, judicial review, appointment of justices and corruption prevention. In the World Bank Database Rule of Law is aggregated as a dimension of governance in the Government Index. Rule of law is a broad term and since I am interest on its effect on the corrective administration I decided to create an adjusted rule of law index that is relevant for the corrective administration. A second argument why I chose a time frame that is relatively recent is because of the European enlargements. Some countries like Bulgaria and Romania have joined the EU recently but are interesting for the research because of the high number of positive rulings of IDTP.

3.2.3 Macro analysis

The research will be conducted at two levels: micro and macro. The macro-analysis looks into the bigger picture of the data that has been collected. Since the data consists of court cases which are difficult to interpret by a quantitative analysis solely, I will carry out a micro-analysis of the court decisions to get a more in-depth interpretation of the results. In the macro-analysis I will test whether there is a correlation between the independent variable, the adjusted rule of law index, and the dependent variable, positive rulings of cases that involve IDTP. The data that will be used to measure the positive rulings of cases that involve IDTP are detracted from the HUDOC database. In the next section I will discuss in greater detail which filters were used to subtract the relevant cases. For the independent variable I will calculate the average of the adjusted rule of law index. First, I calculated the average index number for each factor individually by including the yearly rate in the period of 2013-2017. Having done that, the individual factors were used to calculate the average adjusted rule of law index as a whole. To test the different hypothesis, I will also include the correlation between the

Pillars of democratic constitutional states in corrective administrations: Explaining cases of inhuman or degrading treatment or punishment in European corrective facilities by the rule of law implementation