The importance of an accurate medical examination and keeping records of the use of coercive measures Criminal sanctions and other measures determined by courts in criminal proceedings are enforced according to the Enforcement of Criminal Sanctions Act (ZIKS-1). In 2015, the latter was extensively amended with ZIKS-1F (Official Gazette of the Republic of Slovenia, [Uradni list RS], No. 54/2015). We provided numerous comments and proposals within the scope of expert harmonisation based on the proposal for amendments to the Act. We welcomed all amendments to the current legislation that are intended to eliminate the consequences of recent findings against the Republic of Slovenia at the European Court for Human Rights (ECHR) regarding the implementation of prison sentences, the fulfilment of recommendations of the CPT and those amendments that followed our recommendations, as well as a more effective and just application of alternative sanctions to replace imprisonment, as well as those that are necessary, because during implementation, some legal solutions proved ineffective, since they permitted different interpretations and were insufficient. We agreed that the main task of expert and other workers in prisons is expert work with convicted persons and not “bureaucracy” or the issue of decisions in bureaucratic procedures. There were not many complaints in 2015 alleging ill-treatment or other irregularities by judicial police officers in the course of their work. Due to the lack of cooperation of one complainant when verifying a claim of inappropriate use of coercive measures, we discontinued our consideration of one matter which began in 2014; when considering a similar complaint, we found that the complainant’s statements and explanations contradicted decisive facts referring to the conduct of judicial police officers. Because we were unable to verify the information, we assessed further investigation of the matter would not yield the truth of the matter in this case. We also established that many of our comments were fully (or at least reasonably or partially) considered and realised with the preparation of norms such as: - the preparation of a personal plan at the end of the reception period – Article 30 of the ZIKS-1 (we emphasised that the convicted person must be motivated to collaborate in the preparation of a personal plan and must be enabled to cooperate; this should also be emphasised in the Act, so that a greater sense of relevance and responsibility for realising the personal plan is given to the convicted person); - the possibility of delaying imprisonment – Article 24; - the establishment of adapted premises or a section of one of the institutions for convicted persons who need additional assistance for their basic needs due to their age, sickness or disability, i.e. in the form of care or social care – Article 60 of the ZIKS-1; - the withdrawal of initially prepared amendments to Article 71 (convicted person writing and receiving letters from other persons) and amendments with regard to other contacts of convicted persons with the outside world, e.g. regulation of contact between convicts and the media – Article 73 of the ZIKS-1; - regulation of phone calls, including the possibility of calling the police emergency number – Article 75 of the ZIKS-1; - modification of the practise of terminating imprisonment; - amendment to the educational measure of committal to an institution for training based on an orientation decision – Article 199 of the ZIKS-1; - better regulation of relocations to special premises – Article 236 of the ZIKS-1. Unfortunately, some of our comments and proposals were overlooked or not considered, e.g. some of our comments with regard to regulating the practise of delay in imprisonment, i.e. our warning that the modification (e.g. removing the possibility for convicts to file request for a delay of their imprisonment after a deadline if there is a reason for such delay) ignores potential cases where convicts have justified reasons for requesting such a solution, because we are concerned that when the convict makes a request to terminate a sentence this will not always be the best and most appropriate solution – Article 25 of the ZIKS-1. Most of our comments with regard to regulating effective legal protection of convicts’ rights in Article 83 of the ZIKS were ignored; therefore, it is questionable whether the amended text of this Article can be an effective legal remedy as intended by Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The amended Act does not consider our warnings with regard to excessively strict application of Article 39 of the ZIKS-1, since the victim of a crime is in any case unable to discover whether the perpetrator is still in prison based on the sentence imposed or when they will be discharged (more on this topic is available in the 2010 annual report). We will closely monitor the realisation of the Act (including all amendments) and if necessary take additional action. In addition to the comments on the amended ZIKS-1F, we also commented on other executive acts that are in preparation (Rules on the exercise of the powers and duties of judicial police officers, Rules on the implementation of prison sentences and Rules on payments for the work of persons subject to a criminal sanction. 48 ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 We have emphasised that only a medical examination can provide expert findings about physical injuries and their occurrence when coercive measures are used against prisoners. This is in the interests of both prisoners and judicial police officers, and enables the observation of potential injuries and the mechanisms (cause) of those injuries, which has an important role in verifying allegations of ill-treatment. Therefore, a medical examination must include an extensive record of prisoners’ statements, including all statements about the occurrence of injuries and a precise description of any injuries observed or absence thereof. During its visit to the Republic of Slovenia in 2006, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) emphasised that doctors were not recording their findings to the extent to which an observed injury corroborates the potential statements of prisoners about ill-treatment. The CPT recommended that this deficiency be eliminated. The CPT (not only during the visit to Slovenia but also to other members of the Council of Europe) recommends that the medical examination of prisoners when coercive measures are taken must contain a record of objective medical findings based on a precise examination (including the type, location, size and special features of each individual noticed injury). Another important part of the doctor’s record is to assess the extent to which the claimed illtreatment is supported by the findings of the medical examination. With regard to this, the Ministry of Health reported to the CPT that it would prepare instructions for doctors on how to record information appropriately on the medical charts of detainees, prisoners and persons in social care institutions, particularly in the event of injuries. It will also prepare instructions on the consistent observance of regulations on personal data protection, especially medical data, and on handling medical documentation. With regard to CPT recommendation, the Ministry clearly explained that the instructions would consider all the CPT recommendations. In the 2009 annual report, we reported that we had warned the Ministry of Health that, for reasons of credibility, the Ministry’s explanations should be provided as soon as possible. Therefore, in April 2009, the Ministry of Health asked all doctors who care for prisoners that they must in “all cases appropriately record all health data in their medical documentation, where special emphasis is put on recording data in cases of physical injuries and their occurrence; this is enabled by a medical examination based on which potential injuries and their causes can be established, which has an important role in verifying allegations of ill-treatment. Therefore, the Ministry of Health recommends that the medical examination contain extensive records on prisoners’ statements, including their statements on the cause of injuries. The medical examination must contain a record of medical findings based on a precise examination (including the type, location, size and special features of each individual injury). Another important part of the doctor’s records should include an assessment of the extent to which the claimed ill-treatment is supported by the findings of the medical examination. The same procedure as in the examination of detainees and prisoners must be applied to persons who are medically examined during detention with the police.” The distribution of the instructions was commended this year, since we believe that diligent recording of information definitely enables easier verification of allegations of potential ill-treatment. We also emphasised the application of the Istanbul Protocol, the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (its relevance is also emphasised by the second report of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment from the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment). However, the medical documentation of prisoners still contains only modest records of information on alleged occurrences of injuries or ill-treatment, and we also notice the absence of records on findings the extent to which the claimed ill-treatment is supported by the findings of the medical examination. ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015 49 2.3 RESTRICTION OF PERSONAL LIBERTY 2.3 RESTRICTION OF PERSONAL LIBERTY Amendments to the Enforcement of Criminal Sanctions Act (ZIKS-1)