The Magistrate's Blog (2005-2012)

This blog has migrated to www.magistratesblog.blogspot.co.uk This blog is anonymous, and Bystander's views are his and his alone. Where his views differ from the letter of the law, he will enforce the letter of the law because that is what he has sworn to do. If you think that you can identify a particular case from one of the posts you are wrong. Enough facts are changed to preserve the truth of the tale but to disguise its exact source.

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Location: Near London, United Kingdom

The blog is written by a retired JP, with over 30 years' experience on the Bench.

Friday, May 23, 2008

Éolas Revisited

Nerd For Justice has kindly taken the time to have a go at translating the article I referred to here:-
By Eolas, Wednesday 12th September 2007 13:20
The punishment block of a prison is known in prison slang as “Solitary”.
In administrative and legal jargon, it is known as “confinement in a disciplinary cell”, defined as:
Placement of the inmate in a cell prepared for this purpose and which he should occupy alone. The sanction involves losing for the duration the ability to buy from the canteen as per article D. 251 (3), as well as loss of visits and of all activities (except as governed by article D. 251-1-2 concerning minors under 16 years). Nonetheless, inmates in disciplinary cells have one hour per day exercise alone in a yard. The sanction does not entail any restriction of their right to written correspondence.
This sanction, the heaviest that the prison authorities can impose, lasts for a maximum of 45 days for first-degree misdemeanours (there are three degrees, the first being the most serious, the second intermediate and the third the least serious).

The action is taken by a disciplinary body: the disciplinary commission, or, in prisoners’ slang, the "Star Chamber”. This is chaired by the prison governor or his representative, with two assessors who are warders. A file of several pages, headed “Incident report”, is written by a warder, often the victim of the action in question. The prisoner is asked to give his explanations, his lawyer, if he has one, is heard, and the decision is given after a short deliberation. The hearing takes place inside the prison; this being– in the case of newer prisons such as Fleury, Mérogis, or Nanterre, where lawyers’ consulting rooms are outside- the only time we are allowed inside the secure area. (Older prisons such as La Santé or Fresnes have no provision to consult away from prying eyes.)

The least that can be said is that it is quick and efficient.

And, would you believe…?

Until 1995, these decisions were authorised by an administrative official responsible for “measures for internal order”, and not subject to legal review by a judge. Who should get the credit, Edouard Balladur or Alain Juppé? Neither, it was actually the Conseil d'Etat , by two arrêts (Note: nearest equivalent is probably Statutory Instruments) , Hardouin and Marie (17th Feb 1995) (http://tinyurl.com/4yrkhj ) which ended this scandalous state of affairs. True, the review falls in the administrative (civil) jurisdiction, which will take two years to reach a judgement, well after the 45 days are up; but referral to this process allows a rapid stay of the process when a measure is of doubtful legality.

There’s more.

Until 2000, the inmate had a right to the help of a lawyer. The “Star Chambers” before then were stressful occasions. The inmates, often intellectually limited, were left to their own devices, and felt they had no say in the process. This feeling may have been well-founded, according to a colleague of mine who did a placement at Fleury during her legal training. Should we credit Lionel Jospin for this step forward in the defence’s rights? That would not be justified; it was a legislative oversight. Jospin’s Government passed Law number 2000-321 of 12th April 2000, concerning the rights of citizens in their dealings with the state (http://tinyurl.com/3seduw ). Article 24 of this law, which is still in effect, specified that any person who is subject to an individual decision, not at their instigation, and which constitutes a sanction, is entitled to the help of a lawyer. The parliamentary debates show that the legislature did not have in mind disciplinary commissions consisting of civil servants. But the law did not make any such distinction, and lawyers insisted it should apply to “Star Chambers” in prisons. At first the government said no, this text did not apply to “Star Chambers”, because this was not what the legislature had intended. This was true, but it was not what had been written. It took an opinion of the Conseil d’Etat on 3rd October 2000 to make the government accept the evidence and realise its terrible mistake- without having meant to, it had extended freedom.

France, land of human rights- we get that slogan drummed into us so much that we forget to ask if reality lives up to it.

And this punishment cell… what, in concrete terms, is it?

Thanks to Rue 89 (http://tinyurl.com/5cxb4o ), making use of a judicial investigation ordered by the Versailles tribunal, we can learn the sickening details. Each cell is on average 8.21 square meters (87 square feet) for men and 7.59 square metres (80 square feet) for women (well, they’re smaller than men, aren’t they?) including the bed and toilet. The floor area, where the prisoner can stand and walk, is on average 4.15 square meters (44 square feet), which is less than the regulation for kennels (5 square metres (53 square feet)). The light level is 7 to 30 lux. The standard for reading is 300 lux. Note that the penal code specifies that prisoners in solitary retain the right to receive and to write letters- but obviously not to read them. Prisoners are kept in these cells 23 hours per day. They are allowed one hour outside, in special yards, of 20 to 30 square meters (211 to 317 square feet) where they are alone. These yards are in reality open rooms covered by grilles, which are flooded on rainy days, making it impossible to take a walk (remember this August’s weather?). Since the prisoners are not entitled to “canteen” privileges, that is, they cannot buy goods from the prison authorities, they do not even have cigarettes.

And for those who hope that at least these are clean and comfortable places, see these photos taken by the investigator (http://tinyurl.com/4leagn ). To clear up any doubts, the trickle of water in the 6th photo, coming out of the wall towards the toilets, yes, that is the shower.

An individual who accommodated someone in such conditions would face up to five years imprisonment (the initial two-year terms were increased to five by the law on internal security passed by the previous minister of the interior). But the State is not subject to the criminal law, so it can do this.
(Note: the links Eloas gives in this paragraph are broken.)

This is in France, in the 21st century .

And for those with a hopeless and hard heart, who spare no tears for the fate of delinquents and criminals who do not behave themselves in prison, a little suggestion. Let us take one of these bad, violent boys. Lock him up for 45 days in such a hole. Imagine 23 continuous hours with 4.15 square meters (44 square feet), in conditions which would make you an offender if you kept a dog there; and this lasts 45 days.

Now consider that one day he will leave the jail, his sentence served. Do you think he will be calmer, better-behaved, a model citizen, having matured from this experience? When you meet him, I hope that will be the case.

But if you’re not sure, then since you have no compassion for others, have compassion for yourself.