Former Judge Says Malta’s Solitary Confinement Could Be In Breach Of European Human Rights
Giovanni Bonello, a former Maltese judge at the European Court of Human Rights, has said it is possible for Malta’s permission of solitary confinement to fall foul of the European Convention of Human Rights.
Maltese law allows judges to sentence prisoners to periods of solitary confinement for a maximum ten-day period every two months, something University dean Andrew Azzopardi recently warned is detrimental to their physical and mental health.
Article 3 of the European Convention of Human Rights, of which Malta is a signatory, prohibits torture and “inhuman or degrading treatment or punishment”.
Asked by Lovin Malta whether solitary confinement could fall foul of this clause, Bonello said there are no yes or no answers to the question, with the European Court of Human Rights having issued different verdicts according to the situation in the past.
He said there are four elements to be considered, the first of which involves the definition of what is meant by ‘solitary confinement’.
“If it means total social and sensory isolation, that is one thing, but if it still allows some possibility of social interaction, such as meeting prison officials, doctors, lawyers and relatives, then it is another matter altogether,” Bonello argued.
Secondly, the ECHR can take into account the duration of the period in solitary confinement.
“If it is indefinite it could be a violation of human rights, while if it is, like Maltese law prescribes, limited and predetermined, it could well be within the parameters of permissible restrictions,” Bonello said.
Thirdly, the ECHR can also look at the reason for ordering solitary confinement as a determine factor on whether it was a justified punishment.
“If, for example it is to prevent the detainee from establishing contacts with organized crime or with terrorist groups, then it could be permissible,” he said. “If, on the other hand, the reason is that the detainee could not adapt to prison conditions and attacked guardians or other prisoners, that punishment would not allowed.”
Finally, the ECHR can also take into account the subjective element of the prisoner sentenced to solitary confinement.
“If the detainee is a vulnerable person, suffers from social deprivation, and solitary confinement would be detrimental to his physical or mental health or causes major suffering, then the punishments inflicted should reflect the ban on inhuman and degrading treatment,” Bonello said.
Solitary confinement in Malta
While prison authorities have the right to use solitary confinement as a punishment for misbehaviour, such a punishment can also be imposed by judges as part of a prison sentence.
Because of the well-documented detrimental effects of solitary confinement, they can only sentence prisoners to ten days of solitary confinement five times a year, a total of 50 days a year.
However, they very rarely apply this power and indeed most murderers avoid it as part of their sentence. There are currently only three ongoing court sentences which include solitary confinement, one of the most recent of which was Nizar El Gadi, who was found guilty of murdering his ex-wife Margaret Mifsud in 2015.
Leading prisoners’ rights activist George Busuttil said that it is “unnecessarily cruel” for judges to be allowed to dish out solitary confinement, while the Nationalist Party called for a study into the practice and its effects on the prisoners involved.
The Labour Party said Malta’s Prison Regulations are fully compliant with the standards established by the Council of Europe but that it is open to a debate on whether solitary confinement should be banned.
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