Legislation concerning release of a remand prisoner contains flaws

Deputy-Ombudsman Jääskeläinen recommends explication of regulations concerning release from custody

2.8.2007

When a court orders the release of a remand prisoner, the established practice is that the person in custody can be released directly in the locality where the court is or sent back to prison to be released from there. Deputy-Ombudsman Petri Jääskeläinen takes the view that in both cases the regulations concerning the release of a remand prisoner are defective from the perspective of Section 7 of the Constitution, which guarantees personal liberty. The Deputy-Ombudsman is recommending to the Ministry of Justice that the regulations concerning the release of a remand prisoner be immediately brought into line with the requirements of the Constitution with regard to their contents, precision and hierarchy of norms.

Release via a prison

The Constitution requires that a ground for depriving a person of liberty must be enshrined in an Act. However, there is no direct foundation in law for a person whose release has been ordered by a court to continue to be deprived of liberty from that point until his or her release has been recorded in the prison's register and he or she has factually been set free. The procedure is based on established practice and an explicatory regulation issued by the Criminal Sanctions Agency.

In the view of the Deputy-Ombudsman, releasing a person via a prison does not satisfy the requirement of the Constitution that a person may not be deprived of liberty without a reason enshrined in an Act. The legislation concerning deprivation of liberty must be precise and comprehensive. The Deputy-Ombudsman does not believe that it can be ruled out that as long as the current legislation remains in force, also situations contrary to the rights safeguarded in Article 5 of the European Convention on Human Rights could arise.

Release from the locality of the court

According to the Deputy-Ombudsman, the requirement of the Constitution that the rights of a person who has been deprived of liberty be safeguarded in an Act must be applied also to safeguarding the rights of a person who is released from the locality of the court. Although loss of liberty has then ended, the position of the released person remains insecure precisely for reasons associated with loss of liberty. This is due to, for example, the fact that remand prisoners do not have the right to have money or other means of payment in their possession and their other personal property is still in the prison.

In the opinion of the Deputy-Ombudsman, the need for the rights of the released person to be protected by means of an Act is especially accentuated in situations where the release takes place in a locality other than the one where the released person lives or in a situation where a person, having been deprived or liberty, is transported penniless to a locality from which, for example, independently travelling home or having a meal is not possible without cash resources.

Procedural obligations

The Deputy-Ombudsman likewise takes the view that a need for statutory regulation of the procedural obligations on the court should also be considered. A report on regional prisons received by the Deputy-Ombudsman revealed problems in the flow of information between court and prison. For example, information concerning the release of a remand prisoner can take a couple of days or even longer to reach a prison from the court where the release had been ordered.

Additional information will be provided by Referendary Pasi Pölönen, tel. + 358 (0)9 432 3345.