The exceptional situation that the country is going through due to the declaration of the state of alarm, following the health crisis generated by the rapid and dangerous spread of COVID-19, has also impacted the penitentiary system.

Inmates now not only have to deal with the intrinsic isolation of imprisonment in a penitentiary center but also with the regimented and treatment-related consequences of the virus's spread. Following the issuance of Order INT/227/2020, of March 15, by the Ministry of the Interior, regarding measures adopted in the penitentiary institutions, inmates have been further distanced from physical contact with their friends, family, and other loved ones, as all types of visits have been prohibited. Additionally, they suffer from the anguish and helplessness of what is happening outside and the potential effects inside if even one inmate or officer becomes infected. However, video call systems have been recently established within penitentiary establishments, allowing inmates to be closer, at least visually, to their loved ones, including their lawyers, in a commendable effort by prison officers to connect families with inmates during these difficult times.

Many inmates, both pretrial and convicted, have requested to spend the confinement in their homes, including some well-known cases like those convicted for the illegal 1-O referendum, Commissioner Villarejo, and Luis Bárcenas. Moreover, there have already been cases of inmates and staff contracting the virus, with at least one prison officer and one inmate having died.

There is no doubt that the relationship between the coronavirus and the confinement faced by inmates is problematic. Therefore, we will address the most controversial issues that arise.

1. i) Extraordinary Permits for Illness or Death of a Family Member

Articles 47 and 48 of Organic Law 1/1979, of September 26, General Penitentiary (hereinafter LOGP) and Article 155 of Royal Decree 190/1996, of February 9, approving the Penitentiary Regulation (hereinafter RP), regulate extraordinary leave permits in case of death or serious illness of parents, spouses, children, siblings, and other persons intimately linked with inmates, or for the birth of the wife or a person with whom the inmate has a similar affective relationship, as well as for important and verified reasons of analogous nature, which will be granted considering appropriate security measures.

Before analyzing cases of death and serious illness of family members, which will be the cases we face due to the coronavirus, it should be noted that the circumstances derived from the expression "reasons of analogous nature" related to extraordinary permits for convicts and pretrial inmates are infinite. These include: not authorized to attend the 50th wedding anniversary of grandparents (National Court Criminal Chamber Section One Order of May 20, 2019); denial of permission to attend a sister's wedding (National Court Criminal Chamber Section One Order of October 21, 2019); non-granting to attend a brother's wedding (Prison Supervision Court of Soria Order of September 24, 1999); denial for disability evaluation (Prison Supervision Court of La Coruña Order of May 20, 2013); non-approval for wedding celebration at the Civil Registry (Prison Supervision Court of León Order of June 23, 2005); authorization to attend a daughter's communion with police custody (Prison Supervision Court of Villena Order of May 6, 2014); granting to attend an electoral table (Prison Supervision Court No. 3 of Madrid Order of May 23, 2003); permission for registration in the civil union registry (Prison Supervision Court of Pamplona Order of November 17, 2014).

Beyond these varied reasons, which sometimes are difficult to fit into the literal wording of the law, extraordinary leave permits are set for cases of death or serious illness of family members and will last as long as necessary, not exceeding seven days. These permits will be granted by the Treatment Board and authorized by the Directorate-General - General Secretariat of Penitentiary Institutions; and for inmates classified in the first degree (in closed regime for extreme danger or maladjustment to the ordinary regime), they must be authorized by the Prison Supervision Judge.

The spirit of such permits revolves around humanitarian reasons.

On this issue, as established by Instruction 1/2012 on Exit Permits and Scheduled Exits, developed by the General Secretariat of Penitentiary Institutions, given the need to expedite certain extraordinary permits quickly, an urgent procedure is provided. This swift processing will not be determined by the reason justifying the permit but by the urgency required in attending to the inmate's request. In these cases, the granting authority is delegated to a single-person body; the Director or Manager of the penitentiary establishment, instead of the Treatment Board.

Additionally, according to Order INT/1127/2010, of April 19, on the delegation of powers in penitentiary management, the Director or Manager is authorized, regarding inmates not linked to terrorist organizations or whose crimes were not committed within criminal organizations, to grant extraordinary leave permits to those classified in the third degree and those in the second degree for reasons of childbirth or death or serious illness of parents, children, siblings, or spouses. Therefore, in these cases of delegated authority, when urgent processing is also required, the Director will grant and authorize the permits.

The question now is whether penitentiary establishments will grant extraordinary permits for death and illness due to coronavirus positives or, on the contrary, deny permits due to the inability to accompany the sick in hospitals or the deceased in funeral homes, considering the restrictions on attending funeral ceremonies contained in Royal Decree 463/2020 and subsequent ministerial orders.

In illness cases, both the LOGP and the RP require it to be serious, automatically ruling out the hospitalization of family members who tested positive for COVID-19. However, the problem arises when family members are admitted to intensive care units, and their condition is serious. In these cases, given the impossibility of visiting sick individuals in hospitals by their families, it also seems unlikely that the Director or the Treatment Boards will grant extraordinary permits for illness, especially when it would also endanger the health of potential police officers guarding the inmate during transport and stay at the hospital.

Therefore, extraordinary permits seem to be limited to cases of death. As mentioned supra, Royal Decree 463/2020; the protocol approved by the Ministry of Health, and resolutions from various Autonomous Communities initially limited attendance at wakes and funeral homes for coronavirus positives only to non-infected family members who did not present respiratory symptoms, complying with established security measures. For other causes of death, individuals with respiratory symptoms of any kind could not attend the funeral. However, the recent Order SND/298/2020, of March 29, establishing exceptional measures regarding wakes and funeral ceremonies to limit COVID-19 spread and infection, has outright banned such ceremonies in all public and private facilities, including private homes, while the state of alarm is active. The exception: the possibility of participating in the burial or cremation farewell procession of the deceased, attended by a maximum of three family members or close friends, always respecting the safety distance of one or two meters.

In conclusion, if family deaths covered by penitentiary regulations occur, extraordinary leave permits should be authorized to attend the burial.

100. ii) Inmates Subject to the Flexibility Principle of Article 100.2 RP

In recent weeks, much has been said about the "special treatment" some believe the inmates convicted for the illegal 1-O referendum are receiving in penitentiary matters, given that they have been applied the exceptional regime of Article 100.2 RP, which, through the flexibility principle, combines aspects of the second and third degree, allowing inmates, among other things, to carry out work activities outside the establishment without being classified in an open regime. However, due to the current health crisis, inmates cannot attend their jobs and remain confined in prison.

Recently, we learned that Jordi Cuixart's defense has requested the Constitutional Court for his client to spend the confinement outside the prison due to the COVID-19 health crisis, arguing that serving the prison sentence while his appeal is pending, in the current pandemic context, could cause him "irreparable harm of uncontestable magnitude," and that he cannot manage this health, social, and economic emergency from his cell with only a few weekly calls. Oriol Junqueras and Raül Romeva have also requested the suspension of their prison sentences from the same court until their appeal is resolved, citing increased health risks due to their imprisonment. The Constitutional Court has yet to resolve any of these requests.

On this point, Supreme Court sources have indicated that they will pursue possible malfeasance charges against Treatment Board officials who allow the confinement of 1-O inmates in their homes without legal justification supporting their decision.

There is an increasing trend, during the state of alarm, given the exceptional situation the country is facing, to request classification under the regime provided in Article 100.2 RP or progression to the third degree to be taken to their respective homes to spend the confinement, offering, as a control option, the placement of an electronic bracelet. These requests have been made, provided there are special personal, penitentiary, procedural, and criminal circumstances that justify them, to avoid the dangerous contagion focus that prisons constitute and the severe consequences an infection could cause inside these establishments.

iii) Pretrial Inmates

Recently, many pretrial inmates have requested provisional release due to the country's emergency situation, including Commissioner Villarejo and Luis Bárcenas. These cases must be analyzed individually to determine if the reasons that led to the pretrial detention order persist, given the current restrictions on movement. However, requests should not be automatically rejected.

Article 503 of the LECrim regulates the purposes of provisional detention: preventing the risk of flight, destruction of evidence, and repeat offending. These risks, as we will see, decrease in the current state of total isolation, where objective data are beginning to emerge of a clear reduction in crime during these first weeks of confinement.

There is no doubt that the current limitation on the freedom of movement of people provided for in Royal Decree 463/2020 and the closure of borders would make it difficult for a pretrial detainee to escape, given that, in addition to their movement being restricted, there are numerous police controls. The risk of repeat offending would also be limited by the need for the pretrial detainee to remain confined at home, as well as the possibility of evidence destruction, which would be limited to the evidence found in their home or to digital evidence that they could access through a computer system.

In short, the health crisis and mobility restrictions undoubtedly affect the purposes pursued by provisional detention, so our Courts should sufficiently justify the denial of requests and the persistence of the reasons that led to the issuance of the provisional detention order. Furthermore, considering the use and abuse of provisional detention in our country, compared to the rest of the European Union states, this situation should serve as a reflection when considering its application, opting for less restrictive systems of personal freedom and more frequently applying other less harmful precautionary measures.

Therefore, it is evident that the crisis caused by COVID-19, notwithstanding that crime levels have decreased, should lead investigating judges to rule out—considering the new and previously unknown concurrent circumstances—the excessive application of provisional detention in cases where, probably, before Royal Decree 463/2020, of March 14, it would have been decreed.

1. iv) Convicts with Pre-existing Pathologies

Requests have also been received from convicts with pre-existing pathologies that could make them more vulnerable to the effects of the coronavirus. However, our penal and penitentiary regulations, in Articles 36.3 of the Penal Code and 196.2 of the Penitentiary Regulations, only provide for the possibility of granting third-degree status or conditional release to very seriously ill patients with incurable conditions, but do not regulate situations of healthy inmates in the face of an increased risk of contagion. Therefore, almost certainly, these requests will be denied. To avoid problems arising from COVID-19 in prison, the General Secretariat of Penitentiary Institutions has developed various protocols with extraordinary measures to prevent the spread of the virus among inmates and staff. These epidemiological measures are regulated by Article 219 of the Penitentiary Regulations—so far applied to outbreaks of infectious diseases like HIV—which states that when an outbreak of a transmissible disease is detected, it must be immediately reported to the competent health authorities and the Directive Center.

1. v) Breaches of Sentence and Administrative Responsibility

One of the issues that always arises when a leave permit is authorized, third-degree classification is granted, or conditional release is given to an inmate is the possibility of flight and repeat offending; risks that must be assumed to respect the purposes of reeducation and social reintegration of inmates.

Thus, the increase in inmate releases during COVID-19 times could increase the likelihood of escape and consequent breach of prison sentences once the state of alarm is over and movement restrictions are lifted.

Another possibility is that the increase in leave permits leads to an increase in criminal activity by inmates outside prison. In these cases, the possibility of the Administration being declared a subsidiary civilly liable party for the crime, according to Article 121 of the Penal Code, has always been debated. However, as a general rule, our Supreme Court has denied this possibility, understanding that, in any case, one would have to resort to the administrative route and seek compensation for damages due to judicial error or abnormal functioning of the Administration of Justice—among others, STS 854/2009, of July 20; 47/2007, of May 29.

 

Eva Gimbernat Díaz
Ollé Sesé Abogados

 

Ignacio Montoro Iturbe-Ormaeche
Summons Abogados