Solitary Confinement of Juveniles in Europe

Bicknell, Christine

doi:10.1007/978-3-031-11484-7_5

Christine Bicknell²⁷

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 103))

290 Accesses

Abstract

Solitary confinement can amount to inhuman and degrading treatment or punishment, and even to torture. Children are amongst the most vulnerable people in criminal justice systems and as the Standard Minimum Rules for the Treatment of Prisoners reflect, should not be subjected to solitary confinement. However, juvenile solitary confinement (JSC) persists and is a feature of juvenile justice across a significant number of Council of Europe states. Drawing from a range of primary sources at UN, European and (as relevant) domestic level, and complemented with findings in the literature, this Chapter identifies and evaluates recurrent themes in the use of JSC across Europe and draws attention to the complexity of the practice’s continued use. A case study of the United Kingdom at the end of the Chapter grounds these findings: illustrating in context and in detail many of the Europe-wide trends, the complexity of issues, JSC’s interface with vulnerability, and difficulties (both practical and legal) associated with implementing the prohibition of JSC.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 109.00; Price excludes VAT (USA)

Softcover Book: USD 139.99; Price excludes VAT (USA)

Hardcover Book: USD 139.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
See in particular UN Special Rapporteur on Torture (2008), Manfred Nowak’s statement to the UNGA at its Sixty-third session, UN Doc. A/63/175; UN Special Rapporteur on Torture (2011), Juan Méndez’s statement to the UNGA at its Sixty-sixth session, UN Doc. A/66/268; Istanbul Statement on the use and effects of solitary confinement, adopted on 9 December 2007 at the International Psychological Trauma Symposium in Istanbul.
2.
Also known as the ‘Nelson Mandela Rules’, UN Doc. GA/RES/70/175 (2015), Rule 45(2). Notably the 2015 revision of the SMR was adopted unanimously by the General Assembly. See also Committee on the Rights of the Child (2019), General comment No. 24 on children’s rights in the child justice system, UN Doc. CRC/C/GC/24, para 95(g)-(h).
3.
British Medical Association (2018), the Royal College of Psychiatrists and the Royal College of Paediatrics and Child Health, ‘Joint position statement on solitary confinement of children and young people’; also The Lancet (2018), p. 1638. Discussed below, the practice has a detrimental impact on the physical and mental health of all people. The focus of this chapter is nevertheless on children.
4.
The CPT derives its mandate from the European Convention for the Prevention of Torture. For more detail on its work, role, and interrelationships with other mechanisms, particularly the European Court of Human Rights, see: Bicknell et al. (2018).
5.
It is an obligation of the European Convention for the Prevention of Torture (1987), para 10(2) for the state seek to ‘to improve the situation in the light of’ the CPT’s recommendations.
6.
Depending on the state, publication of the visit report and the government’s reply which is usually also published, can come after some considerable (years) delay.
7.
The research considers Reports published before 21 September 2020.
8.
Armenia, Austria, Bosnia and Herzegovina, Finland, Luxembourg, Malta, San Marino, Sweden, and Switzerland.
9.
France, Germany, and Russia.
10.
UK Joint Committee on Human Rights (2019), ‘Youth detention: solitary confinement and restraint’, Nineteenth Report of Session 2017-19, HC 994, HL Paper 343.
11.
Aggravating factors may be the presence or absence of purpose underlying the harm, and/or the severity of pain and suffering. See Bicknell et al. (2018), pp. 60–67.
12.
UN Standard Minimum Rules on the Treatment of Prisoners (Nelson Mandela Rules) (2015), UN Doc. GA/RES/70/175, Rule 44; EPR, Recommendation Rec (2006) 2-rev of the Committee of Ministers to member States on the European Prison Rules, as revised and amended by the Committee of Ministers on 1 July 2020 at the 1380^th meeting of the Ministers’ Deputies, para 60.6(a). On the meaning of ‘meaningful human contact’ see in this volume Shalev and Naylor ‘Solitary confinement and the meaning of ‘meaningful human contact’, Chapter 12. The CPT in 2011 defined solitary confinement slightly differently (CPT/Inf (2011) para 54) notably without referring to the duration of separation. It has nevertheless fed into the revision of both the SMRs and EPRs since, and its Reports reflect the relevance of time.
13.
SMR, ibid.
14.
Lobel and Scharff Smith (2020), citing Chapters 8, 9, 10, 13 and 2 of the volume.
15.
UN Special Rapporteur on Torture (2011), Juan Méndez’s statement to the UNGA at its Sixty-sixth session, UN Doc. A/66/268, para 77.
16.
See for example CPT/Inf (2019) 8 (Hungary 2018) para. 72; CPT/Inf (2018) 49 (Moldova 2018), para 56; CPT/Inf (2019) 2 (Montenegro 2017), para 170.
17.
British Medical Association (2018).
18.
Haney (2020), p. 131.
19.
Ibid., p. 132.
20.
Ibid. footnote 19, pp. 132–133. An extensive list of the effects of solitary confinement is also included and contextualised in UN Special Rapporteur on Torture (2011).
21.
See generally, Lobel and Scharff Smith (2020).
22.
UN Special Rapporteur on Torture (2011), para 26, citing Haney (2003), pp. 124–156.
23.
Ibid.; UN Standard Minimum Rules on the Treatment of Prisoners (Nelson Mandela Rules), Rule 44.
24.
Akil (2020), p. 205: supported by the testimony of Robert King et al., Chap 14 of the same book.
25.
Nor, conversely, whether less so.
26.
Akil (2020), p. 205.
27.
Juan Méndez has described people held in prolonged or indefinite solitary confinement as ‘in a prison within a prison’, UN Special Rapporteur on Torture (2011), para 57.
28.
CRC (2019), para 9 where overcoming or otherwise managing specific vulnerabilities are indicated in its very first point to prevent child offending.
29.
UN Special Rapporteur on Torture (2011), para 77.
30.
Istanbul Statement on the use and effects of solitary confinement, adopted on 9 December 2007 at the International Psychological Trauma Symposium in Istanbul.
31.
As indeed had Sharon Shalev, co-author of Chapter 12 in this volume.
32.
UN Special Rapporteur on Torture (2008), para 83.
33.
Istanbul Statement on the use and effects of solitary confinement, adopted on 9 December 2007 at the International Psychological Trauma Symposium in Istanbul. Emphasis added.
34.
Concluding Observations on the third periodic report of Denmark (CRC/C/DNK/CO/3), para 59(a).
35.
Committee on the Rights of the Child (2006), General comment No. 8, The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia), UN Doc. CRC/C/GC/8, para 8, cited in UN Special Rapporteur on Torture (2011), para 77.
36.
UN Doc. GA/RES/45/113 (1990).
37.
European Prison Rules, Recommendation Rec(2006)2-rev of the Committee of Ministers to member States on the European Prison Rules, as revised and amended by the Committee of Ministers on 1 July 2020 at the 1380^th meeting of the Ministers’ Deputies, Rule 60.6.a. Emphasis added.
38.
See UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by UNGA Resolution 39/46 of 10 December 1984, entry into force 26 June 1987, Article 16 compared with Article 1 (torture). Purpose is not a necessary aspect of CIDT, but it is a defining aspect of torture.
39.
See for example CPT/Inf (2019) 8 (Hungary 2018), para 72; CPT/Inf (2018) 49 (Moldova 2018), para 56; CPT/Inf (2019) 2 (Montenegro 2017), para 170. The same sentiment is expressed elsewhere with slightly different wording in for example: CPT/Inf (2019) 35 (Denmark 2019), para 82; CPT/Inf (2019) 28 (Albania 2018), para 92; CPT/Inf (2017) 16 (Latvia 2016), para 96.
40.
Emphasis added.
41.
They also prohibit, apart from in ‘exceptional circumstances’ for a ‘specified period’, solitary confinement as a disciplinary punishment.
42.
UN Committee on the Rights of the Child (2019), General comment No. 24 on children’s rights in the child justice system, UN Doc. CRC/C/GC/24.
43.
UN Committee on the Rights of the Child (2007), General comment No. 10, Children’s rights in juvenile justice, UN Doc. CRC/C/GC/10.
44.
Ibid, para 89.
45.
Ibid. footnote 42, para 95(g).
46.
Ibid. footnote 42, para 95(h).
47.
UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 1.
48.
Bicknell et al. (2018), pp. 67–70.
49.
ECtHR, Ramirez-Sanchez v France (Grand Chamber), Application No. 59450, Judgment of 4 July 2006; and ECtHR, Babar Ahmad v UK, Application No. 24027/07, Judgment of 10 April 2012.
50.
A ‘professional revolutionary’ (Ramirez-Sanchez) and five terror suspects challenging extradition to the United States (Babar Ahmad).
51.
Highlighted in the very early case law: ECtHR, Ireland v UK (Plenary), Application No. 5310/71, Judgment of 18 January 1978, [162]. For examination of the contextual approach, see Bicknell et al. (2018), pp. 67–70.
52.
See UN Special Rapporteur on Torture (2008), and UN Special Rapporteur on Torture (2011).
53.
The accepted sources of international law as set out in the 1945 Statute of the International Court of Justice, Article 38(1) mean disputes will nevertheless be decided at the international level ‘in accordance with’ soft law.
54.
The precise number is not clear, as some CPT Reports are silent or unclear as to whether JSC is lawful or not. It is lawful in at least 15 states: Albania; Croatia; Czech Republic; Denmark; Estonia; Greece; Hungary; Latvia; Liechtenstein; Moldova; Montenegro; Poland; Spain; Turkey; and Ukraine.
55.
Similar trends are observable in the use of solitary confinement for adults. For example, CPT/Inf (2019) 7 (Romania 2018), para 130.
56.
Moldova.
57.
Greece, Czech Republic (remand only).
58.
Spain, Croatia.
59.
Albania, Czech Republic, North Macedonia, Hungary.
60.
Liechtenstein rarely has more than 10 adult inmates and agreements with neighbouring states means sentenced prisoners are generally detained elsewhere.
61.
CPT/Inf (2019) 35 (Denmark 2019), para 82.
62.
Ibid.
63.
Montenegro, in exceptional circumstances permits JSC of up to 15 days.
64.
CPT/Inf (2017) 34 (Spain 2016), para 133.
65.
CPT/Inf (2019) 31 (Estonia 2017), para 67.
66.
CPT/Inf (2019) 20 (Slovak Republic 2018), para 89.
67.
CPT/Inf (2018) 37 (Azerbaijan 2017), para 70.
68.
It has long hidden behind confidentiality, declining to publish visit reports. The majority of CPT Reports on visits to Azerbaijan were published in July 2018, whereas the CPT had been visiting the country since 2002. Azerbaijan was such an uncooperative partner during a visit from the SPT in 2014, that the SPT suspended its visit: https://www.ohchr.org/RU/NewsEvents/Pages/DisplayNews.aspx?NewsID=15047&LangID=E.
69.
CPT/Inf (2016) 35 (Azerbaijan 2016), para 7.
70.
CPT (2008), 18th General Report, CPT/Inf 25, para 26; See also Kilkelly and Casale (2012).
71.
CPT/Inf (2019) 8 (Hungary 2018), para 75.
72.
Ibid.
73.
CPT/Inf (2019) 8 (Hungary 2018), para 76.
74.
CPT/Inf (2019) 31 (Estonia 2017), para 78.
75.
Ibid. footnote 74, para 77.
76.
Ibid. footnote 74, para 67.
77.
CPT/Inf (2019) 23 (Czech Republic 2018), para 79.
78.
CPT/Inf (2018) 39 (Poland 2017), para 107.
79.
CPT/Inf (2018) 21 (Serbia 2017), para 50.
80.
Ibid., para 51.
81.
CPT/Inf (2019) 2 (Montenegro 2017), para 169. The same sentiment is reflected in reports on Moldova, Ukraine, Poland, and Spain.
82.
CPT/Inf (2018) 41 (Ukraine 2017), para 106.
83.
CPT/Inf (2017) 34 (Spain 2016), para 135.
84.
CPT/Inf (2019) 2 (Montenegro 2017), Executive summary and para 169.
85.
CPT/Inf (2018) 39 (Poland 2017), para 103.
86.
CPT/Inf (2018) 49 (Moldova 2018), para 58.
87.
Ibid., para 58.
88.
CPT/Inf (2019) 8 (Hungary 2018), para 77.
89.
CPT/Inf (2018) 41 (Ukraine 2017), para 103.
90.
CPT/Inf (2019) 2 (Montenegro 2017), para 75.
91.
CPT/Inf (2017) 34 (Spain 2016), para 88.
92.
The situation for adult prisoners appears from the 2018 report to be worse. However, though inter-juvenile violence seemed to be decreasing, the same structures appeared to be in place for juveniles. See CPT/Inf (2018) 49 (Moldova 2018), paras 48–58 (adults), paras 59–61 (juveniles).
93.
CPT/Inf (2019) 8 (Hungary 2018), para 46.
94.
CPT/Inf (2019) 28 (Albania 2018), para 106.
95.
CPT/Inf (2019) 23 (Czech Republic 2018), para 46.
96.
Ibid.
97.
Ibid. footnote 95, para 52.
98.
The United Kingdom comprises four nations: England, Wales, Scotland, and Northern Ireland, and three separate criminal justice systems: England and Wales, Scotland, and Northern Ireland. Criminal justice is a ‘devolved matter’ in the latter two.
99.
High-level talks 4–5 June 2019: https://www.coe.int/en/web/cpt/-/council-of-europe-anti-torture-committee-holds-high-level-talks-in-the-united-kingdom.
100.
UK Joint Committee on Human Rights (2019), ‘Youth detention: solitary confinement and restraint’, Nineteenth Report of Session 2017-19, HC 994, HL Paper 343.
101.
[2019] EWCA Civ 9, 18 January 2019.
102.
CPT/Inf (2020) 18 (United Kingdom, May 2019), para 151.
103.
Ibid.
104.
Ibid. footnote 102, para 113.
105.
Ibid. footnote 102, para 146.
106.
Ibid. footnote 102.
107.
Ibid. footnote 102.
108.
Ibid. footnote 102.
109.
A visit undertaken as appears to be ‘required in the circumstances’, Article 7(1) ECPT.
110.
CPT/Inf (2020) 18 (United Kingdom, May 2019), para 151, para 1.
111.
Ibid., para 114.
112.
Ibid. footnote 110, para 113.
113.
Ibid. footnote 110, para 118.
114.
124 boys under 18 years at the time of the visit.
115.
CPT/Inf (2020) 18 (United Kingdom, May 2019), para 151, para 118.
116.
Ibid.
117.
Ibid. footnote 115, para 119.
118.
See ibid. footnote 115, where arrangements are outlined.
119.
Ibid. footnote 115.
120.
UK Joint Committee on Human Rights (2019).
121.
Ibid., paras 49–50.
122.
Ibid. footnote 120, para 39.
123.
Ibid. footnote 120, para 68.
124.
The only reference to gangs in R(AB)—AB was perhaps not part of one—is in a quote from the 2016 CPT report. R (AB (A Child) v Secretary of State for Justice [2019] EWCA Civ 9, 18 January 2019, [98], which refers to CPT/Inf (2020) 18 (United Kingdom, May 2019), para 91.
125.
Mayor of London Office for Policing and Crime (2018), Review of the Metropolitan Police Service Gangs Matrix, MOPAC, pp. 6–7.
126.
Such further research really ought to be conducted.
127.
UK Joint Committee on Human Rights (2019), para 40.
128.
CPT/Inf (2020) 18 (United Kingdom, May 2019), para 151, para 152.
129.
Ibid., para 154.
130.
Ibid. footnote 128.
131.
UK Joint Committee on Human Rights (2019), para 58.
132.
Ibid.
133.
Shortly after this chapter was accepted for publication the case was appealed to the UK Supreme Court under an adjusted case name: R (AB) v Secretary of State for Justice, Case ID: UKSC 2019/0155. At the time of writing, the judgment was still pending with one issue under consideration being whether the Court of Appeal ‘erred in its approach to international materials’.
134.
R (AB (A Child) v Secretary of State for Justice [2019] EWCA Civ 9, 18 January 2019, [14].
135.
Ibid., [14]-[17].
136.
Ibid. footnote 134, [18]-[20].
137.
Ibid. footnote 134, [57].
138.
10 December 2016 to 2 February 2017; 2 February to 16 February 2017; and 16 February to 2 March 2017.
139.
R (AB (A Child) v Secretary of State for Justice [2019] EWCA Civ 9, 18 January 2019, [74–75].
140.
Ibid., [77].
141.
UN Rules on the Protection of Juveniles Deprived of their Liberty (1990), UN Doc. GA/RES/45/113.
142.
R (AB (A Child) v Secretary of State for Justice [2019] EWCA Civ 9, 18 January 2019, [106].
143.
Ibid., [83].
144.
Ibid. footnote 142, [98] citing CPT CPT/Inf (2020) 18 (United Kingdom, May 2019), para 151, para 91.
145.
Ibid. footnote 142, [100].
146.
Ibid. footnote 142, [108].
147.
ECtHR, Ramirez-Sanchez v France, (Grand Chamber), Application No. 59450, Judgment of 4 July 2006.
148.
‘Carlos the Jackal’, ibid, [10].
149.
ECtHR, Babar Ahmad v UK, Application No. 24027/07, Judgment of 10 April 2012.
150.
R (AB (A Child) v Secretary of State for Justice [2019] EWCA Civ 9, 18 January 2019, [111].
151.
Ibid., [143].
152.
Ibid. footnote 150, [144]–[145].

References

Akil H (2020) The brain in isolation: a neuroscientist’s perspective on solitary confinement. In: Lobel J, Scharff Smith (eds) Solitary confinement: effects, practices, and pathways to reform. OUP, New York, pp 199–219
Google Scholar
Bicknell C, Evans M, Morgan R (2018) Preventing torture in Europe. Council of Europe, Strasbourg
Google Scholar
British Medical Association, the Royal College of Psychiatrists and the Royal College of Paediatrics and Child Health (2018) Joint position statement on solitary confinement of children and young people. https://www.bma.org.uk/media/1859/bma-solitary-confinement-in-youth-detention-joint-statement-2018.pdf
Haney C (2003) Mental health issues in long-term solitary and ‘Supermax’ confinement. Crime Delinq 49(1):124–156
Article Google Scholar
Haney C (2020) Solitary confinement, loneliness, and psychological harm. In: Lobel J, Scharff Smith (eds) Solitary confinement: effects, practices, and pathways to reform. OUP, New York, pp 129–152
Google Scholar
Kilkelly U, Casale C (2012) Children’s rights and the European Committee for the Prevention of Torture. Council of Europe, Strasbourg
Google Scholar
Lobel J, Scharff Smith (eds) (2020) Solitary confinement: effects, practices, and pathways to reform. OUP, New York
Google Scholar
The Lancet (2018) Solitary confinement of children and young people. The Lancet 391:1638
Google Scholar
Mayor of London Office for Policing and Crime (2018) Review of the Metropolitan Police Service Gangs Matrix. https://www.london.gov.uk/sites/default/files/gangs_matrix_review_-_final.pdf
UK Joint Committee on Human Rights, Youth detention: solitary confinement and restraint, Nineteenth Report of Session 2017-19, HC 994, HL Paper 343, Published on 18 April 2019
Google Scholar

Law and Soft Law Sources

International

UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Adopted by UNGA Res/39/46 of 10 December 1984. Entered into force on 16 June 1987.
Google Scholar
Statute of the International Court of Justice (1945)
Google Scholar
UN Special Rapporteur on Torture (2008), Manfred Nowak’s statement to the UNGA at its Sixty-third session, UN Doc. A/63/175
Google Scholar
UN Special Rapporteur on Torture (2011), Juan Méndez’s statement to the UNGA at its Sixty-sixth session, UN Doc. A/66/268
Google Scholar
Istanbul Statement on the use and effects of solitary confinement, adopted on 9 December 2007 at the International Psychological Trauma Symposium in Istanbul
Google Scholar
UN Standard Minimum Rules on the Treatment of Prisoners (Nelson Mandela Rules), UN Doc. GA/RES/ 70/175 adopted on 17 December 2015
Google Scholar
UN Rules on the Protection of Juveniles Deprived of their Liberty, UN Doc. GA/RES/45/113, adopted on 14 December 1990
Google Scholar
UN Committee on the Rights of the Child (2006), General comment No. 8, The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment, UN Doc. CRC/C/GC/8
Google Scholar
UN Committee on the Rights of the Child (2007), General comment No. 10, Children’s rights in juvenile justice, UN Doc. CRC/C/GC/10
Google Scholar
UN Committee on the Rights of the Child (2019), General comment No. 24 on children’s rights in the child justice system, UN Doc. CRC/C/GC/24
Google Scholar
UN Committee on the Rights of the Child, Concluding Observations on the third periodic report of Denmark, UN Doc. CRC/C/DNK/CO/3, para 59(a)
Google Scholar

European

(Specific CPT state reports are left from this list and included in the footnotes).
Google Scholar
European Prison Rules, Recommendation Rec(2006)2-rev of the Committee of Ministers to member States on the European Prison Rules, as revised and amended by the Committee of Ministers on 1 July 2020 at the 1380^th meeting of the Ministers’ Deputies
Google Scholar
CPT, 18^th General Report, CPT/Inf (2008) 25
Google Scholar
CPT, 21^st General Report, CPT/Inf (2011) 28
Google Scholar

Cases

European Court of Human Rights

ECtHR, Ireland v UK (Plenary), Application No. 5310/71, 18 January 1978
Google Scholar
ECtHR, Ramirez-Sanchez v France, (Grand Chamber), Application No. 59450, 4 July 2006
Google Scholar
ECtHR, Babar Ahmad v UK, Application No 24027/07, 10 April 2012
Google Scholar

United Kingdom

R (AB (A Child) v Secretary of State for Justice [2019] EWCA Civ 9, 18 January 2019
Google Scholar
R (AB) v Secretary of State for Justice, Case ID: UKSC 2019/0155
Google Scholar

Download references

Author information

Authors and Affiliations

University of Exeter, Exeter Law School, Exeter, UK
Christine Bicknell

Authors

Christine Bicknell
View author publications
You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Christine Bicknell .

Editor information

Editors and Affiliations

Programme for Studies on Human Rights in Context, Human Rights Centre, Ghent University, Ghent, Belgium
Clara Burbano Herrera
Programme for Studies on Human Rights in Context, Human Rights Centre, Ghent University, Ghent, Belgium
Yves Haeck

Rights and permissions

Reprints and permissions

Copyright information

About this chapter

Cite this chapter

Bicknell, C. (2022). Solitary Confinement of Juveniles in Europe. In: Burbano Herrera, C., Haeck, Y. (eds) Human Rights Behind Bars. Ius Gentium: Comparative Perspectives on Law and Justice, vol 103. Springer, Cham. https://doi.org/10.1007/978-3-031-11484-7_5

Download citation

DOI: https://doi.org/10.1007/978-3-031-11484-7_5
Published: 09 October 2022
Publisher Name: Springer, Cham
Print ISBN: 978-3-031-11483-0
Online ISBN: 978-3-031-11484-7
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics