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The Catalan Ombudsman reports violations of rights in the Supreme Court interlocutory decrees that revoke the third degree of prison regime

Among the reasons to deny criminal enforcement measures to these people are the "lack of regret" and that they have not served half their sentence.

The Catalan Ombudsman published a few weeks ago the report Effects on rights of the criminal enforcement of Supreme Court Ruling 459/2019. On this basis, and in view of the decisions adopted on December 4, 2020, by the Supreme Court, the Catalan Ombudsman considers that it is important to highlight the following considerations:

1. Judicial body laid down by law

The decision to grant the third degree to the nine people deprived of their freedom has gone through a technical process (the treatment boards of the prisons in which they are serving their sentence) and has been endorsed by two different prison supervision courts. The existence of these specialized jurisdictional bodies in the penitentiary field, as specialized bodies entrusted with the control of the legality of the decisions and measures of the penitentiary administration, is a guarantee for the criminal enforcement of the sentences. The intervention in matters of criminal enforcement of the court that issued the sentence, which may be biased by this fact, blurs the guarantee of the rights of people deprived of their freedom, consisting of a judicial control by a specialized and autonomous judicial body, which is in the spirit of the Penitentiary Law.

2. Ideological freedom

To the extent that the prison situation is conditioned to the recognition of the crime, to regret and to a treatment program connected with the crime, the Supreme Court interlocutory decrees could threaten the ideological freedom of the convicted people. These people have never denied the facts and have fully complied with their criminal consequences. To demand that the criminal nature of these acts be accepted or that programs aimed at changing their ideas and beliefs be imposed as prison treatment, as a condition for obtaining a specific prison regime, would constitute a violation of ideological freedom recognized in article 16.1 of the Spanish Constitution and of the freedom of thought recognized in article 9.1 of the European Convention on Human Rights. Giving up one's own ideology should be considered a violation of ideological freedom, in the sense indicated by both the Constitutional Court and the ECHR.

3. Length of the sentence

Certainly, the length of the sentence is one of the variables of articles 102 of the Penitentiary Regulations and 63 of the General Prison Act in order to grant or not a third degree. However, in the case of the nine convicted people, the revocation of the third degree on the basis of the time of completion or the length of the sentence is not justified, and cannot be considered a privileged treatment with respect to other people convicted to long sentences. Prison practice in Catalonia, protected by the law, does not require that in order to be progressed to the third degree, one must have served a quarter of the sentence, not to say half of it, and have had permits. Prison legislation only requires that the person deprived of freedom has a favorable background and record. When this is the case, the person deprived of freedom can be progressed to third degree without having served a quarter of the sentence and even be initially classified as third degree.

4. Inadequate unity of action

The Catalan Ombudsman did not consider appropriate the application of reinsertion mechanisms to a unity of action (same date and same proposed mechanism), since it is more common in prison practice for different people convicted in the same proceeding to be assessed by different treatment boards, with different dates and proposed mechanisms, bearing in mind the principle of scientific individualization. By the same argumentative logic, the interlocutory decrees released on December 4, 2020, by the Supreme Court, although formally separated, do not comply either with the principle of scientific individualization, since they coincide in date, arguments and result, and treat the nine convicted people as a unity of action and not individually.

Taking into account all of the above, the Catalan Ombudsman reaffirms that the progression to the third degree approved by the Catalan penitentiary administration was and is consistent with the law, and that its application is in line with the Catalan penitentiary policy that promotes such mechanisms.

For their information, and as was done with the report of November 13, this statement will be sent to the European Committee for the Prevention of Torture and to the Spanish Ombudsman. 

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