Can European human rights instruments limit the power of the national state to punish? A tale of two Europes

Prison policy under the progressive control of the Council of Europe: Reintegration and rehabilitation as objectives

Within the framework of the CoE, the adoption of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in 1989 and the establishment of its monitoring Committee (the CPT) complemented the ECtHR with its preventive and proactive activities. The reform of the ECtHR in 1998 and the work of the CPT since 1989 have had an enormous impact on standard-setting for European prisons. The ECtHR has enhanced its protection for prisoners from torture and inhuman or degrading treatment (Art. 3 ECHR). It has ruled consistently that prisoners in principle retain their fundamental rights under the ECHR, and that restrictions of such rights must be necessary, legitimate and proportionate. The ECtHR’s case law has increasingly been influenced by the CPT standards and reports: by 2012, the ECtHR had referred in 350 cases to the CPT standards or visit reports (22 General Report, CPT/Inf (2012)25 § 23). A similar interaction and mutual reinforcement developed with the Committee of Ministers’ Recommendations, in particular the 2006 European Prison Rules (Van Zyl Smit, 2013; Van Zyl Smit and Snacken, 2009).

The ECtHR has also increasingly emphasized that the rehabilitation and reintegration of prisoners is as important an aim of punishment as retribution and deterrence. For example, life sentences that did not give the prisoners serving them a realistic prospect of release were held to amount to degrading punishment. ² Reintegration also reinforced the right to family contacts for prisoners. ³ In the reasoning of the ECtHR, reintegration is linked to human dignity and to other individual rights for prisoners (Martufi, 2019; Van Zyl Smit and Snacken 2009).

These three mechanisms – the ECtHR, the CPT and the Recommendations of the Committee of Ministers – are complemented by other CoE initiatives, such as the ‘Twin prisons’ projects, through which Scandinavian and Baltic prisons exchange their basic prison staff. Baltic and other former Eastern bloc prison systems suffer from the legacy of Soviet prison regimes and staff cultures, where armed prison officers relied mostly on coercion to achieve security and had no regular contacts with prisoners. The idea behind the project is that personal, face-to-face relationships between prison officers will foster a new attitude towards prisoners in Baltic states, which will accord with European penological and human rights standards (Österdahl, 1997). Involvement of the CoE Development Bank (CEB) in modernizing penitentiary infrastructure in Central and East European countries since 2009 is another example. The projects financed by the CEB aim at promoting a human rights approach to prison management. They must comply with the European Prison Rules as these are the standards recognized by the CEB for the treatment of detainees and the management of detention facilities. By mid-June 2014, the CEB had approved 11 projects with a value of around €462 million in loans to finance penitentiary infrastructure in its member states (CEB, 2014).

Towards penal policy moderation

Article 5(1) of the ECHR protects the right to liberty and security of all persons. It provides for limited exceptions, when deprivation of liberty is imposed after conviction by a competent court; for non-compliance with the lawful order of a court; as remand custody; on juvenile offenders, mentally ill persons, alcoholics or drug addicts; and to prevent an unauthorized entry into the country or with a view to deportation or extradition.

Confronted with large variations in penal severity across the European continent, the ECtHR has traditionally backed away from interfering in national policies and practices concerning remand custody ⁴ or sentencing, ⁵ unless periods of detention or sentences would be grossly disproportionate or degrading. ⁶ However, prison overcrowding in many member states, condemned by the CoE Recommendations and CPT Standards, has led to some reconsideration. The ECtHR now emphasizes that deprivation of liberty should always be used as a measure of last resort and requires consideration of other, less stringent measures, particularly in the case of remand custody. ⁷ However, the ECtHR still makes an exception to this imperative where imprisonment after conviction is concerned. ⁸

Reintegration is also emphasized as an important aim of penal policies, for example regarding preventive detention of dangerous offenders, ⁹ where it should counterbalance retribution and deterrence as the other rationales of punitive penal policies.

Prison overcrowding through the lens of penal policies moderation

Since its decision in Dougoz v. Greece (6 March 2001), the ECtHR has accepted that prison overcrowding may constitute inhuman or degrading punishment violating Article 3 of the ECHR. The evidence in many CPT reports and the sheer number of cases brought before the ECtHR have led the latter to conclude that prison overcrowding results from structural problems relating to penal inflation and policies, independent from crime rates, a policy also reflected in the CoE Recommendation (99) 22, concerning Prison Overcrowding and Prison Population Inflation. These recurring cases have led the ECtHR to resort to pilot judgments, in which prison overcrowding is seen as a consequence of the overly repressive nature of criminal and penal policies associated with a lack of alternatives to custody. ¹⁰ The Strasbourg Court has given governments (including the Italian, Russian, Romanian, Moldavian, Hungarian, Polish, Belgian and French ones) clear indications of the type of remedial measures, including changes to national penal policies, needed to resolve underlying structural problems responsible for human rights violations. For instance, as early as in 2009, the ECtHR ruled that Poland ‘must abandon its strict penal policy in order to reduce the number of incarcerated persons or put in place a system of alternative means of punishment’. ¹¹ Solutions suggested by the ECtHR include decriminalization of certain offences (among them drug offences and illegal immigration), improving prison conditions (through renovation and new prisons replacing the oldest ones), fostering community sanctions and measures and early release, resorting to shorter sentences, and imposing shorter periods of, and alternatives to, remand custody. ¹²

Lastly, in terms of environmental design and the ergonomics of prisons, the ECtHR has sought to encourage nation states to modify the allocation of prisoners within establishments. In particular, the Strasbourg Court has stressed in many cases ¹³ the need for a minimum cell space and the provision of toilets, which allow prisoners to have a minimum of privacy and dignity. Similarly, the ECtHR has held that policies of intensive transfers and excessive security measures constitute violations of the right to dignity. ¹⁴ In order to increase the cell space available, the ECtHR has recommended renovating certain penal establishments deemed to be dilapidated and even replacing them with new, more spacious prisons in order to increase prison capacity. ¹⁵ Such legal developments challenge harsh prison policies and, in particular, the old principle of less eligibility, in terms of which the state’s power to punish also allowed it to treat prisoners more harshly than other persons under its control.

The ECtHR has also recommended building psychiatric establishments that are intended to receive and care for populations who cannot be appropriately accommodated and cared for within a typical prison setting. ¹⁶ The strategy pursued by the ECtHR in order to address the issue of the environmental design and ergonomics of prisons has been one of diversifying the types of confinement, whether that be through the introduction of psychiatric or therapeutic communities, in order to care better for specific populations, held separately from other prisoners.

Impact on member states’ prison and penal policies: Moderation and reaction to it

Many examples of penal moderation (understood as limits on the state’s power to punish) promoted by the case law of the ECtHR, the CPT standards and the Committee of Ministers’ Recommendations on national legislation, courts, prisons and penal practices have been acknowledged and described by national authorities (Council of Europe, 2011). In particular, the creation of pilot judgments has increased the influence of ECtHR case law on domestic criminal and penal policies. Tackling systemic failures, such as prison overcrowding, which transcend the individual treatment of prisoners, has allowed the ECtHR to put pressure on national governments to change their penal systems in order to make imprisonment less painful and to increase respect for the human rights and the dignity of prisoners.

We offer a few examples of penal moderation that was endorsed by some CoE member states under the influence of the ECtHR. The case of M v. Germany brought about a major change in German legislation and the German Constitutional Court’s case law on preventive detention (Dünkel and Morgenstern, 2018). The Torreggiani pilot judgment is described as a turning point in Italy’s tackling of prison overcrowding, resulting in the Court referring now to the ‘Italian way’ of complying with its decisions (Caputo and Ciuffoletti, 2018). ¹⁷ Italy has moderated its penal policies by notably decriminalizing some drug offences and applying new alternatives to custody.

More moderate penal policies have also been applied by the Romanian authorities under the influence of the ECtHR. ¹⁸ The new policies have tackled prison overcrowding by reducing the overall prison population. This has been achieved by making the Penal Code and the law on the execution of penalties less severe, establishing an effective Probation Service, and enhancing the social reintegration of prisoners (National Strategy for the Social Reintegration of persons deprived of liberty, 2020–2024) through the development of prison labour and prison renovation that is financed by the CoE Development Bank. ¹⁹

Bulgaria was also ordered by the ECtHR to decrease its prison overcrowding and to remedy poor detention conditions. ²⁰ In response, the Bulgarian parliament passed new laws that sought to extend alternatives to prison sentences and conditional release, along with provisions to adopt new rules for the allocation and transfer of prisoners. ²¹

Poland has implemented several alternatives to imprisonment (limitation of liberty, electronic monitoring), as well as prompt release and conditional earlier release, and has depenalized several offences (Act of 27 September 2013 amending the Code of Criminal Procedure and certain other laws) in order to address the prison overcrowding (Polish Act of 20 February 2015) condemned by the ECtHR. ²²

Following several pilot judgments that condemned Belgium for its prison overcrowding, ²³ the Belgian government reduced prison overcrowding, not only by increasing prison capacity, but also in combination with alternatives to imprisonment. It replaced short prison sentences with alternative sanctions, which increased the use of electronic tags for offenders serving sentences outside prison. Improvements in the monitoring of sentencing and probation have led to a decrease in reoffending and thus re-imprisonment. ²⁴ In addition, the Belgian Law of 28 January 2016 legalized the use of electronic tags for those on remand awaiting trial, whereas previously they could be used only on convicted offenders.

In Russia, the inhuman and degrading treatment resulting from severe prison overcrowding and the overuse of pre-trial detention ²⁵ were tackled by reducing imprisonment rates (from 729 in 2000 to 386.1 in 2019 – see Aebi and Tiago, 2020) and improving prison conditions on remand.

Even Nordic countries, which are traditionally characterized by their moderate penal policies, have improved their prison policies by revising the internal appeal mechanisms to bring them into line with CPT recommendations and Article 6 of the ECHR (Lappi-Seppälä and Koskenniemi, 2018).

However, there are also many instances of non-compliance that thwart the role of penal moderation endorsed by the ECtHR. The number of non-implemented ECtHR judgments is huge. By March 2016, the Committee of Ministers was terminating its supervision of implementation in only 23.6 percent of prison-related judgments, and the average time to implementation was five years for closed cases. Judgments relating to overcrowding and poor prison conditions are the least likely to be implemented. These structural human rights violations persist in many countries, including those with the highest numbers of non-implemented cases (Italy, Russia, Ukraine, Romania, Greece, Poland, Bulgaria, Turkey) (Anagnostou and Skleparis, 2017) and, in particular, in populist regimes. For instance, the response by Hungary to the ECtHR request that it decrease its prison overcrowding has been apathetic, with the ECtHR experiencing a 95 percent increase in cases from Hungary pertaining to a breach of Article 3 (Raimondi, 2017). In the same way, Hungary has refused to grant the possibility of parole for life sentenced prisoners as requested by the ECtHR. ²⁶ Whereas non-compliance in these cases may be due to the complexity of the remedial measures to be taken, resistance is sometimes a matter of ‘principle’,’ as in the UK, where the Hirst case (6 October 2005) declaring the blanket ban on prisoners voting to be disproportionate was staunchly resisted by courts, politicians and the public (Padfield, 2018).

Nevertheless, initial non-compliance can be turned into penal moderation after a period of time. Poland, for example, was condemned by two ECtHR judgments that underlined the restrictions and the cumulative effects of the ‘dangerous detainee’ regime on the applicant, ²⁷ and that the length and severity of the measures taken exceeded the legitimate requirements of security in detention pursued by the authorities. After some resistance, the Polish government in 2015 amended the Criminal Enforcement Code to implement the ECtHR judgments. ²⁸ According to the amendment, the ‘dangerous detainee’ regime may be imposed only on a detainee who had committed a crime of a high degree of social harmfulness. In addition, extension of the regime requires the Polish authorities to take into account the prisoner’s personal conditions, motivation while committing the crime, behaviour in prison and degree of demoralization.

Political backlash and populism

The enhanced status and impact of the ECtHR has led to increasing political reaction by some member states against ‘excessive’ interference by the Court in their national penal and prison policies. It started with the 2005 Hirst case in the UK, spread to other consolidated democracies in the 2010s, and then to Central and East European countries with increasingly populist regimes. In the UK, criticisms related to ‘foreign judges’ overthrowing national Acts of Parliament and impeding national security by prohibiting extradition of terrorism suspects, ²⁹ resulting in Conservative leaders explicitly advocating withdrawal from the ECHR and the jurisdiction of its Court. ³⁰ Dutch criticism of the ECtHR in parliament and government in 2010 and 2011 was fuelled by right-wing resistance to elected politicians being overridden by an international court (Gerards, 2016: 332–3) and by specific clashes with the ECtHR concerning asylum and social security policies. Denmark expressed concerns after the Danish Supreme Court blocked the deportation of a convicted criminal of Croatian nationality because this would violate his rights as interpreted by the ECtHR ³¹ (Stiansen and Voeten, 2018).

In the East, the Russian Federation has one of the highest numbers of non-implemented judgments of the Strasbourg Court (nearly 1500). Russia regards ECtHR case law as characterized by a double standard in that the ECtHR tolerates actions of the consolidated democracies that it would not tolerate for Russia (see Cliquennois, 2020; Cliquennois and Champetier, 2016). This is why, on 14 December 2015, a law was passed enabling the Russian Constitutional Court to declare rulings of international bodies ‘impossible to implement’, despite the Russian Constitution guaranteeing precedence of international treaties over domestic law. On 19 April 2016, the Russian Constitutional Court ruled that the ECtHR judgment in Anchugov and Gladkov v. Russia (12 September 2013) on prisoners’ voting rights was inconsistent with the Russian Constitution and therefore not enforceable. Hungary, Poland and Turkey are other countries where political leaders with strong electoral support embrace ‘illiberal democracy’ while attacking unpopular minorities’ rights (for Hungary, see on this specific aspect Orbán, 2014).

In this climate, the ECtHR is no longer subject to the legal criticism of its judgments, as many courts are, but faces a sustained political backlash against its very authority (Stiansen and Voeten, 2018). The same climate, combined with the explosion of cases before the ECtHR and the resultant backlog, led to the 2012 Brighton conference, ³² an initiative by the UK to discuss imposing more restraints on the Court. ³³ This resulted in adding requirements to the Preamble to the ECHR on the subsidiarity of the ECtHR and the recognition of the margin of appreciation for the member states. ³⁴

Result: The Strasbourg Court is becoming less ‘activist’ ³⁵

A quantitative empirical analysis of the ECtHR case law has revealed that the proportion of judgments in which the Court found at least one violation has dropped by about 15 percent since 2005 (Stiansen and Voeten, 2018). Explanations are found in the increased nomination of judges who are more likely to favour raison d’état and increased strategic deference by judges to national policies. Between 1998 and 2005, candidate countries for accession to the EU tended to nominate judges with explicit records as human rights activists, possibly to signal their commitment to human rights standards and to facilitate their accession. In contrast, five out of the six judges showing most deference to national policies were appointed after 2011, illustrating a shift in nomination policy by some national political authorities in both East and West (Poland, Czech Republic, Bosnia and Herzegovina, Sweden, Denmark) after the 2012 Brighton conference. The strategic deference to national policies is stronger in relation to consolidated democracies (in particular, to those in whose politics populism plays a major role) compared with non-consolidated democracies, with the UK specifically being a beneficiary. But although much of the criticism in these consolidated democracies against the ECtHR related to judgments involving unpopular minorities such as refugees and prisoners, there is no hard evidence that the ECtHR showed particular deference in this group of cases compared with other cases against consolidated democracies (Stiansen and Voeten, 2018: 37–9).

The picture is more complex in penal and prison matters, where the role of penal moderator played by the ECtHR has become somewhat reduced through the politicization of human rights. The legal principles of ‘subsidiarity’ and the ‘margin of appreciation’ have been used successfully by consolidated democracies to resist obligations imposed by the ECtHR. This trend is becoming visible in respect of prisoners’ rights, as exemplified by the weakening of the principles, established in the 2013 Vinter case, on release of lifers in Hutchinson v UK (17 January 2017), which neutralizes the judicialization of whole-life imprisonment, and in Ilnseher v. Germany (4 December 2018), which allows preventive detention, ostensibly outlawed in the earlier case of M v. Germany. In both the Hutchinson and the Ilnseher cases, the ECtHR rubber stamped the governments’ positions and accepted the not entirely convincing arguments by the national authorities that their policies had been adapted to the Strasbourg case law. More precisely, the ECtHR accepted, contrary to the Vinter case, that a whole-life sentence in the UK was now to be regarded as reducible; ³⁶ and that German preventive detention did not breach Article 5 § 1 of the ECHR on account of the high risk of recidivism established by the domestic courts and of the suitability of a new preventive detention centre for mental health patients. ³⁷ In the ECtHR’s view, the British and German national courts were conceived not only as providing effective domestic remedies for the complaint bodies but also as authoritative interpreters of the domestic legislation and the ECHR itself (Creighton et al., 2018). In his dissenting opinion in Hutchinson v UK, Judge Pinto de Albuquerque was sharply critical of the idea that the margin of appreciation ‘should be wider for those States which are supposed “to set an example for others” and narrower for those States which are supposed to learn from the example’. He explained that ‘[t]his evidently leaves the door wide open for certain governments to satisfy their electoral base and protect their favourite vested interests. . . . [T]his is not what the Convention is all about.’

There are also indications that the Committee of Ministers has become less assiduous in the enforcement of judgments of the ECtHR. In spite of a long line of ECtHR decisions, from Hirst in 2005 onwards, ordering the British government to legislate on prisoners’ right to vote, the Committee of Ministers accepted an administrative solution (Action Report DD-DH(2018)843), even though it required no legislation and was unlikely in practice to allow a significant number of prisoners to vote in practice. This unsatisfactory solution has been seen by critics as a political initiative to allow the Committee of Ministers to close a troublesome case after 13 years, rather than a substantive contribution by the CoE to prisoners’ right to vote in the UK (Adams, 2019; Celiksoy, 2020).

The growing politicization of the human rights initiatives of the CoE is an important trend, but it should not be overestimated. Many positive developments of prisoners’ rights in the dimension of ‘Europe’ exemplified by the CoE have taken place and are of continuing significance. To understand these complex dynamics further it is important to consider the interactions between the CoE and the EU, because the role of the EU’s ‘Europe’ is significantly different from that of the CoE.

EU and CoE cooperation: Fostering human rights in prisons

On 1 April 2014, a Statement of Intent was signed by the CoE Secretary General and the EU Commissioner for Enlargement and European Neighbourhood Policy, in which both organizations agreed to further strengthen their cooperation in key areas of joint interest. One example of such a joint programme is the ‘Horizontal Facility’, which started in January 2017 and includes a first theme on ‘Ensuring Justice’. Work in this area focuses on prisons and police in Albania, Bosnia and Herzegovina, Montenegro, Serbia, Kosovo and the former Yugoslav Republic of Macedonia, including human rights in policing, healthcare in prisons, safeguards against torture and ill-treatment, and judicial human rights standards focusing on enhancing the application of the case law of the ECtHR. ³⁸ The Horizontal Facility includes technical assistance and legal and policy advice. ³⁹ The EU also funds prison reforms through the Instrument for Pre-Accession Assistance (IPA). ⁴⁰ These cooperative efforts relate to aspiring candidate countries, not to current member states.

At EU level, the Directorate-General for Justice of the European Commission funds a growing number of criminal justice and human rights programmes to implement and strengthen the ECtHR case law and CPT standards in certain reluctant countries and recent CoE member states. These EU programmes are mainly carried out through mutual learning, exchange of good practices, awareness-raising, cooperation and training activities. They aim at reducing prison overcrowding (notably through the development of alternatives to imprisonment), ⁴¹ improving prison conditions ⁴² and strengthening prisoners’ rights. ⁴³

The Court of Justice of the European Union as a fundamental rights court: Prison conditions

At the same time, the EU was developing its own capacity to influence the penal policies of its member states. An important forerunner of the Treaty of Lisbon, which currently regulates the EU, was the Treaty of Amsterdam of 1999, which aimed at transforming the EU into an ‘area of freedom, security and justice’, leading to a set of instruments based on the ‘cornerstone’ principle of mutual recognition. This principle implies that judicial decisions taken in one (issuing) Member State are respected and implemented in the other (executing) Member State. The most important Council Framework Decisions on mutual recognition in the penal area relate to the European Arrest Warrant (FD 2002/584/JHA); custodial sentences and transfer of prisoners within the EU (FD 2008/909/JHA); probation orders and other types of alternative sanctions (FD 2008/947/JHA); and supervision measures as an alternative to pre-trial detention (FD 2009/829/JHA). These instruments are based on the (irrebuttable) presumption that mutual trust exists between the member states because they can all be relied upon to respect fundamental rights and other fundamental principles of EU law (Baker, 2013: 88–90).

As the ECtHR case law had revealed severe deficiencies in some member states’ prison systems, both the European Council (Stockholm Programme – European Council, 2010) and the European Commission (Green Paper 2011 – European Commission, 2011) emphasized the need to improve prison conditions through the implementation of the European Prison Rules, monitoring of prison conditions, exchange of best practices in prison management and alternatives to imprisonment.

In 2015, the CJEU went an important step further by increasingly relying on the European Charter of Fundamental Rights of 7 December 2000 and in particular on Article 4, which is equivalent to Article 3 of the ECHR and prohibits torture, inhuman and degrading treatments, and on Article 6, which enshrines the right to liberty and security in the same way that Article 5 of the ECHR does. The implementation of the Charter has widened the CJEU’s fundamental rights role, not only by increasing the set of rights provisions that it is empowered to enforce, but also by expanding the scope of the Court’s jurisdiction over new areas and domains of law such as immigration, asylum, privacy, security, terrorism and prison custody (De Burca, 2013). In particular, in Aranyosi and Căldăraru, ⁴⁴ the CJEU held that, if serious indications exist that the conditions of detention in the issuing member state infringe the dignity and fundamental rights of the requested person, the executing judicial authority must postpone its decision on the surrender of the person under a European Arrest Warrant until it receives additional information enabling it to rule out the existence of such a risk. If this risk cannot be discounted within a reasonable time, the executing judicial authority must decide whether to terminate the procedure. The CJEU referred to CPT reports and ECtHR cases on Hungary and Romania to assess the reality of this risk and did depart from the obligation to presume that other member states provide effective and equivalent fundamental rights protection, bringing its case law closer to the ECtHR. The Aranyosi and Căldăraru case thus recognized the theoretical possibility of refusing to transfer a prisoner in such a case. This new jurisprudence was confirmed by the further case law of the CJEU. ⁴⁵ In this manner, the CJEU not only endorses the ECtHR criteria on degrading treatments, which represent the highest value to be protected, ⁴⁶ but gives more power to the ECtHR judgments in the case of systemic and structural issues that are subjected to penal moderation. ⁴⁷ It pushes some EU member states (such as Hungary and Romania) to improve their conditions of detention and to combat prison overcrowding through moderate penal policies. Nevertheless, it still protects the principle of mutual trust and recognition with some exceptions, among them the risk of infringement of the dignity and fundamental rights of the requested person.

In contrast, the EU legislative power is used more narrowly than that of the CJEU. Arguments by the European Parliament (2017) to foster satisfactory conditions in European prisons are still formulated mainly from the perspective of judicial cooperation and the efficiency of the EU penal system (through retribution and deterrence) and focus less on individual rights.

Penal policy

EU competences in criminal matters were introduced by the Maastricht Treaty in 1993 and evolved progressively with the creation of the ‘area of freedom, security and justice’ to include harmonizing instruments regarding substantive and procedural criminal law and instruments regulating interstate cooperation. The relevant EU Treaties do not refer explicitly to the aims of punishment or which aim to prioritize. However, it has become well-established practice for EU legislation and CJEU case law to specify that member states must punish violations with ‘effective, proportionate and dissuasive’ sanctions, in which effectiveness is understood as aiming at retribution and deterrence (Baker, 2013; Martufi, 2019) rather than social reintegration as promoted by the CoE. Minimum prison sentences were imposed for harmonized offences in order to avoid incentives for criminals to seek ‘safe havens’ in the ‘most lenient’ national sanctioning systems (Montaldo, 2018). And the ‘war on terrorism’ after the 9/11 attacks in 2001 led to an escalation of penal measures, particularly those involving coordination and cooperation between police and judicial authorities (among them Council Framework Decision 2002/475/JHA and Council Decision 2005/671/JHA), which contributed to a ‘turbo-penalization’, endangering a number of fundamental rights such as the right to a fair trial, freedom of expression and the right to privacy protected by the ECtHR (Snacken and Dumortier, 2012).

More recently, the EU has responded to the evolving terrorist threat and, in particular, to the Paris and Brussels terrorist attacks by preventing and challenging radicalization and extremism ideologies leading to violent extremism. ⁴⁸ The EU has thus extended the existing tools and rules to criminalize new ‘pre-crime’ terrorist behaviours. In 2017, a Directive was adopted by the European Council to prevent terrorist attacks by criminalizing acts such as undertaking training and being trained for terrorist purposes; travelling for terrorist purposes (within, outside or to the EU), as well as organizing or facilitating such travel; and providing or collecting funds with the intention or the knowledge that they are to be used to commit terrorist offences and offences related to terrorist groups or terrorist activities. ⁴⁹ Such criminalization of pre-crime behaviour fosters a process of penalization of suspect populations (Zedner, 2007) that contrasts with the individual human rights-based approach adopted by the CoE.

The Paris and Brussels terrorist attacks also prompted the EU Council to adopt resolutions in 2019 on preventing and combating radicalization in prisons, and on dealing with terrorist and violent extremist offenders after release. ⁵⁰ Given the risk posed by the growing number of terrorist offenders and offenders radicalized while in prison, the Council insisted on the need for further measures. These included the creation of specialized and multidisciplinary units responsible for countering violent extremism and radicalization in prisons, the development and implementation of risk assessment tools, ⁵¹ and the enhancement of disengagement programmes, as well as further monitoring of radicalized individuals who are considered to pose a continued threat. ⁵² In particular, the EU is promoting the implementation of special security measures and segregation regimes for ‘terrorists’ in separate wings in high-security prisons, notably through EU programmes that finance studies analysing and even promoting the benefits and advantages of such segregated prison regimes (EU Penal Programmes 2015–2019). Such programmes and regimes, which endanger prisoners’ rights through segregation, systematic strip searches and lack of activities and support, have been criticized by the CPT. ⁵³ Lastly, the EU Council recommends case-by-case monitoring after release of radicalized individuals who, on the basis of a risk assessment, are deemed to pose a continued threat. ⁵⁴ Although the EU Council asserts that reintegration must be an aim to be pursued by national governments, such a recommendation on close monitoring of radicalized individuals after their release contradicts the integrative approach to rehabilitation applied by the ECtHR in its jurisprudence.

Internal migration, mutual recognition and ‘reintegration’ of offenders within the EU

The increased mobility within the EU led to an influx of East European citizens into West European countries, ⁵⁵ where some came into contact with West European criminal justice systems and ended up in Western prisons. Research shows that non-custodial sanctions and measures at the level of remand custody and sentencing are consistently applied less frequently to foreign nationals, resulting in their overrepresentation in West European prisons (Melossi, 2015; Van Kalmthout et al., 2007).

As mentioned, several Framework Decisions (FDs) were developed according to the principle of mutual recognition between states. Each of these FDs refers to the importance of preserving the offender’s links with the community and preparing a successful resettlement or social rehabilitation. But, in reality, the aim of social reintegration of offenders seems less important than countering the risk of impunity through the European Arrest Warrant (by abolishing the option for member states to refuse to surrender their own nationals), or the speedy transfer of foreign national prisoners back to their country of origin through the FD on custodial sentences (as exemplified by the abolition of the need for consent of the sentenced person).

In addition, with a view to harmonizing the defence rights in a European criminal justice area and to guaranteeing adequately the rights of the defendants in transnational criminal proceedings, the Directive on the Right of Access to a Lawyer ⁵⁶ and the Directive on Legal Aid ⁵⁷ were adopted. Although these Directives are considered by the literature to have important and beneficial effects on the rights of suspected persons in detention (Bachmaier, 2015), the legal content of the Directive on the Right of Access to a Lawyer does not provide an adequate framework for enhancing the protection of the procedural safeguards in transnational criminal proceedings, such as the execution of European Arrest Warrants or the proceedings that lie within the competence of the future European Public Prosecutor. Moreover, the Directive has not really taken into account the specific situation of prisoners facing very poor and unhealthy conditions of detention and sometimes other fundamental rights violations in many EU member states. Such shortcomings of EU law thwart prisoners’ access to justice, in particular the quality of their defence (which could potentially increase their prison sentence), and restrict their ability to complain about their conditions of detention and other breaches of human rights committed by national prison administrations.

This trend is reinforced by both the European Commission and the CJEU case law that mentions the importance of reintegration but, at the same time, prioritizes penal law enforcement objectives, deterrence (De Bondt and Miettinen, 2015) and mutual recognition (Article 82 of the Treaty of the European Union), above the interests that convicted individuals have in accessing rehabilitative treatments. ⁵⁸

Furthermore, the conceptual elaboration of offenders’ rehabilitation as a policy goal is particularly poor. This paucity becomes apparent in comparison with other constitutive elements of EU criminal policy, such as functionality and effectiveness (Montaldo, 2018). Offender’s’ rehabilitation is closely linked to key provisions of the EU Charter of Fundamental Rights, such as human dignity (Art. 1), the prohibition on inhuman or degrading punishment (Art. 4), the right to liberty and security (Art. 6) and the principle of proportionate sentencing (Art. 49(3)). Moreover, the CJEU has recognized that the ECtHR offers authoritative and ‘interpretative guidance’ and that the concepts of ‘detention’ and ‘deprivation of liberty’, for the purposes of EU law, must be applied in a manner consistent with the ECtHR case law. ⁵⁹ However, where the ECtHR considers rehabilitation/reintegration to be an individual right linked to human dignity and other fundamental rights, the CJEU approaches rehabilitation primarily from the point of view of a state’s interest in reducing reoffending (Martufi, 2019). In addition, because the EU has important criminalization powers but lacks competence in enforcing national criminal law and sentencing, rehabilitation is downplayed as a merely interstitial contingency in the field of harmonization of substantive criminal law. Offenders’ rehabilitation is even more neglected in the CJEU case law on the relations between EU citizenship rights and national criminal law, because the commission of a criminal offence in itself is seen as justifying the loss of the right to permanent residence (Montaldo, 2018). This internal incoherence impacts negatively on the EU member states’ obligations to establish a general legal framework able to maximize rehabilitation policies and to make all efforts to enhance individual resocialization. A significant gap exists between nominal EU substantive and procedural harmonization and the more sophisticated national sentencing and execution regimes (Montaldo, 2018). Consequently, the absence of a coherent internal approach to offenders’ rehabilitation contrasts with the conception of rehabilitation endorsed by the CoE and the case law of the ECtHR (see above).

Impact on national policies: From human rights to citizens’ rights?

A ‘membership theory’ increasingly restricts individual rights and privileges to those who are members of a social contract between the government and the people. European penal and prison systems in jurisdictions caught between the competing but reinforcing forces of globalization and nationalism increasingly apply a two-tier approach to criminal justice that aims at reintegration into society for citizens and at deportation and territorial exclusion for non-citizens. This results in decreased procedural and substantive protection of the latter (Bosworth et al., 2018; Franko Aas, 2014) and the resorting to ‘foreign nationals only prisons’ in, for example, the UK, Norway and the Netherlands, characterized by a disapplication of rehabilitation and an ‘enemy penology’ (Mulgrew, 2018).

The discrepancy between the CoE and EU approaches to penal and prison policies in regard to non-citizens is confirmed by the case of M.S.S. v Belgium and Greece (21 January 2011), in which the ECtHR judged that both the Greek and the Belgian governments violated the ECHR by applying the EU Dublin Regulations, because Belgium had sent back an asylum seeker to Greece despite evidence of the inhuman and degrading treatment awaiting him there. Attempts at amending the Dublin Regulations and redistributing asylum-seekers more equally among EU member states through the introduction of new mandatory or permanent quotas for solidarity measures have consistently failed owing to resistance by, among others, Hungary, Slovakia and Poland. ⁶⁰ We are hence facing a real danger in Europe of evolving towards the protection of ‘citizens’ rights rather than ‘human’ rights, in which the EU, through the use of mechanisms such as the Dublin Regulations, focuses on the former only, whereas the CoE, through the ECtHR and the CPT, retains its protections of the fundamental human rights of all persons incarcerated in Europe. With regard to the process of deportation under Article 28(3) of Directive 2004/3867, the CJEU has in its case law reduced the threshold of public security, blurring the line separating it from public order. ⁶¹ Therefore, any serious criminal behaviour may lead to the expulsion of EU citizens regardless of other criteria. This interpretative approach reinforces the power of states to deport offenders, to the detriment of the scope of the rights that are related to EU citizenship. Non-national prisoners may now be expelled despite being born, raised, married and having children in the country from which they are deported.

Such different approaches to human rights between the EU and the CoE strengthen our assumption that there is one Europe focusing on human rights and reintegration and another Europe concerned with cooperation, deterrence and enforcement of punishment, especially against non-citizens. This discrepancy tends to limit the ability of European regional human rights instruments to tame the national state’s power to punish. In addition, such difference in approaches can be instrumentalized by populist regimes, which are able to insist that the lack of coherence in European policies makes it necessary for them to increase their margin of appreciation and use their sovereignty in order to avoid implementing such blurred policies.