Fundamental rights and punishment: Is there an EU perspective?

Introduction

1. The relationship between fundamental rights and punishment is evident, albeit paradoxical. ¹ In fact, the specific feature of criminal law is the application of criminal sanctions, which means a potential or actual limitation of fundamental rights, namely, freedom and property. However, from another perspective, fundamental rights can be seen as a kind of ‘good conscience’ of punishment, ² legitimizing it, since it is in the name of their protection that one accepts their limitation.

Hence, the dialectic between fundamental rights and punishment generates the two functions of penal sanctions: the security function, which aims at protecting the relevant legal interests against crime, and the guarantee function, which aims at protecting individuals against excessive punishment. The former – also called the ‘sword of the criminal law’ ³ – is to be pursued with respect for a number of fundamental rights and principles that are part of the joint heritage of the States abiding by the rule of law, which limits the otherwise unbound exasperation of punishment. In other words, fundamental rights also work as the ‘bad conscience’ of punishment ⁴ and serve as a ‘shield’ ⁵ against its possible excess.

Thus, the double dimension of fundamental rights helps to strike the right balance between the interests of the State and of the individual in the context of punishment. Taking fundamental rights into account means a limitation of repression, as an instance of the principle of proportionality in a broader sense, or principle of necessity, of criminal intervention, which calls for the subsidiary or ultima ratio nature of criminalization, ⁶ as well as for the demand of maximum restriction or prohibition of excess of punishment. ⁷ This principle embodies the refusal of extremely hard criminal sanctions, such as the death penalty and ill treatment, and the restriction of imprisonment to serious offences. These are the contributions of the Enlightenment approach to punishment, ⁸ which inspires the criminal law of the Member States of the European Union (EU); in some cases, they are of constitutional rank and must be respected by the competent bodies in the drafting of criminal law policies. The Portuguese Constitution is, in this regard, a good example, because it establishes that the limitation of fundamental rights must be ‘necessary’ to ‘safeguard other rights or interests protected by the Constitution’, ⁹ which, as a result, conditions the legitimacy of the use of criminal sanctions.

2. A norm with a similar reach can be found in Article 52(1) of the Charter of Fundamental Rights (CFR), which provides that ‘any limitation of the exercise of rights and freedoms recognised’ by the Charter must be subjected to the ‘principle of proportionality’ and ‘limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others’. ¹⁰ Hence, one can find, at the EU level, the principle of proportionality/necessity that has proved so valuable, over the centuries, in legitimizing and limiting domestic criminal law.

The need to design EU criminal law in compliance with the principle of proportionality is especially clear in the post-Lisbon stage, in view of the strengthening and expansion of the EU’s competence to legislate on criminal matters, enshrined in Article 83 of the Treaty on the Functioning of the EU (TFEU). ¹¹

It is important to note that, already with the creation of the EU in 1992, Article F of the Treaty of the EU (TEU) – currently Article 6(3) – provided that ‘fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law’. Moreover, the commitment for the respect of fundamental rights gained consistency with the adoption of the Charter, which today has the same legal value as the Treaties (Article 6(1) TEU). It should be added that the meaning and scope of fundamental rights, under Article 52(3) of the Charter, are ‘the same as those laid down by that Convention’, without prejudice to the possibility of Union law ‘providing more extensive protection’.

As a consequence, an extensive range of fundamental rights play a crucial role in the configuration of the European punitive system, namely, the right to life (Article 2(1) CFR), which encompasses the explicit prohibition of the death penalty (Article 2(2)); the prohibitions of torture or inhuman or degrading treatment or punishment (Article 4) and of forced labour (Article 5(2)); the prohibition of removal, expulsion or extradition to a State where there is a serious risk that the individual would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment (Article 19(2)); and the principle of proportionality of penalties (Article 49(3)). Interestingly, the latter provision is unparalleled in the ECHR, ¹² which nevertheless has not prevented the European Court of Human Rights (ECtHR) from considering that a ‘manifestly disproportionate’ penalty could mean inhuman treatment and be contrary to the prohibition laid down in Article 3 of the Convention. ¹³

The rise of a humanist European punitive system depends crucially on the relationship of complementarity and mutual reinforcement of fundamental rights between the EU and the Council of Europe. In this regard, the ECHR has already been construed by the ECtHR as a ‘dynamic’ instrument, which should adapt to new realities and demands. ¹⁴ Among them, the CFR clearly stands out as a true bill of rights of the EU, providing new perspectives and possibly new contents to the acquis of the Council of Europe. In this context, it is appropriate to perceive Europe as a broad area in the realm of criminal sanctions, built upon mutual influences.

In particular, this article aims at analysing the terms in which European criminal law respects the aforementioned principle of proportionality of punishment and translates an EU perspective in the field of criminal sanctions. Despite some recent positive developments, the criminal sanctions system of the EU still sends troubling signs of not fully complying with the prohibition of excessive punishment. In fact, two of its characteristic features are a matter of concern, namely, the primacy of imprisonment and the rule according to which criminal sanctions should be effective, proportionate and dissuasive (the so-called ‘minimum triad’).

Imprisonment in secondary law and the proportionality principle

1. A global analysis of the legislative acts on ‘European criminal law’ shows that imprisonment is usually – indeed: almost always – provided for, ¹⁵ which deserves some remarks. It is true that Euro crimes (Article 83(1) TFEU) are qualified as being ‘particularly serious and having a cross-border dimension’; however, since the entry into force of the Treaty of Lisbon, the EU has the competence to criminalize much less serious conduct, which (merely) jeopardizes the effectiveness of Union policies in areas that have been subject to harmonization measures (Article 83(2) TFEU). Nevertheless, the instruments adopted pursuant to the latter competence provide for imprisonment as the sole penalty. ¹⁶

As a matter of fact, European criminal law replicates the tension between securitarian and liberal agendae that is also present in the criminal policy of the Member States. The rising demand for security has been leading the legislatures to provide not only for more, but also for heavier penalties, to the detriment of other sanctions where the role of the rehabilitative element is more important or even predominant. For instance, there is no European instrument imposing a duty on the Member States to provide for community service in their domestic legal systems, and restorative justice has only recently come about. ¹⁷ Moreover, the clause regarding the ‘minimum rules’ laid down in Article 83 TFEU usually leads the European legislature to impose on Member States the duty to provide for ‘at least’ imprisonment, ¹⁸ although the principle of proportionality enshrined in the Charter ¹⁹ should condition the choice of the type of criminal penalty as well. ²⁰ In this context, it does not seem possible to identify the criteria used by the European legislature when choosing the type of sanctions that the Member States must provide for in their legal system or, at least, the criteria to be followed by the latter while selecting the applicable sanctions.

So far, the EU legal instruments on criminal sanctions do not make any reference to the principle of preference for non-custodial penalties (e.g. to the ultima ratio nature of imprisonment), which relies on proportionality and rehabilitation. In turn, the Court of Justice seems to be more sensitive to such approach. In Márton Urbán, the Court began by emphasizing that the Member States ‘are empowered to choose the penalties which seem to them to be appropriate (…) in accordance with the principle of proportionality’. ²¹ And it added, clearly pointing to the principle of preference for the least serious penalty, as a tribute to the principle of proportionality: ‘(…) When there is a choice (by the national legislature) between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused (by the criminal sanction) must not be disproportionate to the aims pursued’. ²² Additionally, the Court provided the same guidance for the concrete application of the sanctions by the national courts:

(…) Member States are required to comply with the principle of proportionality not only as regards (…) the determination of the rules concerning the severity of fines, but also as regards the assessment of the factors which may be taken into account in the fixing of a fine. ²³

Accordingly, in the Court’s view, the proportionality principle is binding not only on national legislatures but also on the courts of the Member States.

In his Opinion in the Land Baden Wurttemberg case, Advocate General Bot referred to the principle of rehabilitation as a general principle of EU law. ²⁴ And the rehabilitative goals of criminal sanctions were explicitly taken into account by the Court to assess, in particular, the proportionality of the penalty (expulsion) applied by the national court:

(…) a balance must be struck (…) between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned (…) and the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated (…). ²⁵

In other words, the Court has assessed whether or not the actual application of the sanction of expulsion complied, in a particular case, with the proportionality principle.

The Court of Justice seems to follow a rather casuistic approach to the grounds and purposes of punishment (namely imprisonment), which is due to the absence of a real EU criminal policy stand, or indeed binding legislation, on the issue. ²⁶ The Green Paper of 2004 ²⁷ was undoubtedly an important step, since it brought to light the difficulties of harmonizing national punitive systems and showed that those difficulties can only be overcome if a consensus on the basic principles on punishment is reached. A similar concern for detention conditions (in the realm of judicial cooperation and mutual recognition) is mirrored by the Green Paper of 2011, ²⁸ which underlines the need to make penitentiary systems conform to the relevant fundamental rights (e.g. those enshrined in Articles 4 and 19(2), CFR).

2. In the specific field of imprisonment, an important issue arises from the relationship between the proportionality principle and life sentences.

2.1. European criminal law does not prohibit life imprisonment. Besides, in the framework of judicial cooperation, the rules on the surrender of individuals who might be subject to life imprisonment do not really promote the abolition of such penalty, as they only establish the possibility for the executing Member State to request a guarantee that the law of the issuing state provides for a review of the penalty after 20 years, at the least. ²⁹ Indeed, such guarantee will not even be sought if the executing state does not itself provide for mandatory review.

However, up until now, there has been no European legal instrument providing for it, not even those dealing with offences that might carry life imprisonment in several domestic legal orders (namely, terrorism).

The question thus arises of whether a provision for life imprisonment by the European lawmaker would be compatible with the prohibition to be ‘subjected to torture or to inhuman or degrading treatment or punishment’ and with the principle of proportionality of penalties established, respectively, in Articles 4 and 49(3) of the Charter.

The ECtHR has already ruled on the issue from the perspective of the compatibility of life imprisonment with Article 3 ECHR, the content of which is similar to Article 4 CFR, and with the proportionality principle. In Vinter, ³⁰ followed by a number of other decisions, ³¹ the ECtHR reaffirmed, on the one hand, its interpretation that the imposition of life sentences on adult offenders for especially serious crimes is not in itself incompatible with Article 3 or any other article of the ECHR. ³² But it also emphasized, on the other hand, that ‘the imposition of an irreducible life sentence on an adult may raise an issue under Article 3’. ³³ The decision points out the need to evaluate the grounds that justify prison – for example, ‘punishment, deterrence, public protection and rehabilitation’ – ‘at an appropriate point in the sentence’. ³⁴ This demand is based on the guarantee of proportionality of punishment: in the Court’s own words

if ‘a prisoner is incarcerated without any prospect of release and without the possibility of having his life sentence reviewed, (…) whatever the prisoner does in prison, however exceptional his progress towards rehabilitation, his punishment remains fixed and unreviewable. If anything, the punishment becomes greater with time: the longer the prisoner lives, the longer his sentence. Thus, even when a whole life sentence is condign punishment at the time of its imposition, with the passage of time it becomes (…) a poor guarantee of just and proportionate punishment’. ³⁵

Moreover, the proper functioning of proportionality requires, in the Court’s view, the consideration of life imprisonment not only as a repressive tool but also as a sanction with a rehabilitative scope, which – as the Court underlines – is inherent to any form of imprisonment. Thus, it is in the light of the principle of proportionality of sanctions and rehabilitation that the Court concludes that ‘in the context of a life sentence, Article 3 must be interpreted as requiring reducibility of the sentence (…)’. ³⁶

2.2. Up until now, neither has the EU taken a stand on this matter nor has it been discussed in depth by EU bodies and agencies. A future assessment of the issue should take into account three main aspects:

First, given the explicit reference of the proportionality principle to the field of criminal sanctions (Article 49(3) CFR), it is expectable that the prohibition enshrined in Article 4 of the Charter is made more visible, at least in the sense that any EU instrument which might eventually provide for life imprisonment must be compatible with the former.

In addition, the proportionality principle requires that the penalty laid down by the legislature in abstract terms be limited by the gravity of the crime (Article 49(3) CFR). ³⁷ As a consequence, in the context of the current competence of the EU, no offences – perhaps to the exception of terrorist murder – seem fit to attract life imprisonment.

Finally, it will be interesting to see how the Court of Justice will interpret Article 49(3) CFR, bearing in mind the case law of the ECtHR, according to which a sentence that is ‘grossly disproportionate’ could amount to ill treatment contrary to Article 3. ³⁸ Moreover, it is not excluded that the Court might be competent to assess whether the concrete configuration of life imprisonment by a Member State in its internal legal order complies with Articles 4 and 49(3) CFR, as long as it falls within the scope of a legislative act of the EU on criminal sanctions.

The silence of the EU regarding life imprisonment is an example of the more general lack of discussion on the principles of a rational European criminal policy, especially when it comes to question the excessively repressive nature of the criminal sanctions, in order to give humanist and rehabilitative considerations a proper place in the system. As a consequence, and recalling the metaphor of the ‘sword’ and ‘shield’ functions of the criminal law, the former tends to prevail over the latter in the European sanctions ‘system’.

3. The subordination of the EU punitive system to the proportionality principle must still be assessed with regard to two other aspects.

The first question relates to the standpoint of the EU lawmaker vis-à-vis fixed penalties, namely, imprisonment, which are not forbidden by EU legislation, but not used either. As said, the proportionality principle applies already to the legislative acts, with regard to the (abstract) level of the penalties. There are some signs of this concern in EU criminal legislation. Thus, for example, the Directive on the criminal protection of the euro and the Directive on the fight against fraud to the to the Union’s financial interests by means of criminal law acknowledge that the levels of the sanctions ‘should not go beyond what is proportionate to the offences’. ³⁹ A clear orientation on this standpoint can also be derived from the importance given to the rules on sentencing by the legal instruments in force, ⁴⁰ which subordinate the determination of the concrete measure of the sanctions by national courts to the principle of proportionality. Those factors are subsumed by the requirement that sanctions should be proportionate. In this context, it can be argued that EU criminal law considers that fixed penalties violate the principle of proportionality. A sign thereof is given by the fact that the CJEU has already found that fixed penalties were disproportionate. ⁴¹

Another relevant aspect regarding the impact of proportionality on the gravity of imprisonment relates to the fact that EU acts do not provide for – and, consequently, do not impose on national criminal lawmakers – maximum abstract limits to the sanctions. By setting a given minimum duration of imprisonment, ⁴² European provisions endow Member States with a wide margin of discretion to set the levels of abstract gravity of the applicable sanctions and, as such, aim at respecting the internal coherence of national systems. ⁴³ However, not even this goal is attained, because the EU establishes quantitative thresholds for the abstract gravity of the sanctions. Apart from the fact that those values do not seem to form a coherent system of EU evaluations (horizontal coherence), guided by an autonomous proportionality principle, they can potentially disrupt the coherence of domestic legal systems, given the diversity of penal scales in force in the various Member States. The EU should instead adopt a model of ‘double qualification’ for setting the gravity of criminal sanctions, based on a scale composed by formal categories (e.g. light, medium, serious and very serious penalties), which each national legislature would complete using quantitative values drawn from its own punitive system. ⁴⁴ After the establishment of such correspondence in the abstract, the EU legislature would impose, for example, penalties of medium gravity for a given offence, which might indeed translate into different quantitative values in each Member State. In this way, sanctions would be harmonized (all of them would comply with the category ‘medium gravity’) without disrupting the internal balance in each legal order.

The minimum triad

1. As mentioned above, the punitive system of the Union still relies on the idea that criminal sanctions must be ‘effective, proportionate and dissuasive’.

It is important to recall that the origin of the minimum triad is connected to the principle of assimilation, developed by the Court in the Greek maize Judgment. ⁴⁵ This was a ‘palliative’ method intended to make up for the lack of an explicit competence of the European Community on criminal matters. It went hand in hand with the understanding that national lawmakers enjoyed a wide discretion not only to choose between a criminal and a non-criminal sanction but also to choose between which type and level of criminal sanction.

However, the demand for ‘effective, proportionate and dissuasive’ sanctions ended up being used by the EU to qualify criminal sanctions. In fact, the triad is still present in most legal instruments adopted under the specific competence to legislate on criminal matters, both in the field of Euro crimes and offences against the legal interests arising from EU policies (respectively, Article 83(1)(2) TFEU). ⁴⁶

Arguably, the resort to the minimum triad in the context of the current version of the treaties is a legal anachronism.

In the first place, the requirement that Member States provide for ‘effective, proportionate and dissuasive’ criminal sanctions is superfluous, because all those features are indeed inherent to the notion. The triad does not really add anything to the duty to plainly provide for criminal sanctions.

In the second place, now that the EU enjoys an autonomous competence to legislate on criminal sanctions, it should also bear the responsibility to define – with the strictest respect for the overriding principle of proportionality – the type and (qualitative ⁴⁷ ) level of the sanctions applicable to a given offence, thereby abandoning the functional oriented use of the triad ‘effective, proportionate and dissuasive’. ⁴⁸

2. Finally, the competence of the Court of Justice to control the proportionality of sanctions, including criminal sanctions adopted in the legal orders of the Member States as a result of duty imposed by an EU act, shows the crucial role of the said principle in the creation of a punitive system of the EU.

In fact, this concern has been particularly evident in the case law regarding free movement. In 1981, the Court ruled, in the well-known Casati Judgment, that ‘(…) Community law (also) sets certain limits in that area (criminal legislation) as regards the control measures which it permits the Member States to maintain in connection with the free movement of goods and persons’. And it formulated the principle of proportionality of penalties, adding that they should not be ‘so disproportionate to the gravity of the infringement that it becomes an obstacle to the exercise of that freedom’. ⁴⁹

More recently, the Court has extended its case law to include limitations to national penalties, in order to achieve the effectiveness of an enforcement measure in the area of freedom, security and justice. In El Dridi, which concerned the compatibility of a national norm imposing a prison penalty of 4 years for immigration offences with the EU Returns Directive, ⁵⁰ the Court reiterated that criminal legislation ‘may be affected by European Union Law’. ⁵¹ Although the Court’s decision is based on the logic of effectiveness, ⁵² the Court emphasizes that the Directive expressly makes coercive measures subject to the principle of proportionality, ⁵³ and, as such, this principle acts as a ‘safeguard against the excessive national enforcement powers in cases concerning the Justice and Home Affairs of the Union and their implementation’. ⁵⁴ In the same direction, Advocate General Mazák held that the question was of whether imprisonment was necessary to implement the return decision, ⁵⁵ which he answered in the negative. ⁵⁶

Conclusion

To conclude, it can be said that the punitive system of the EU has a positive distinctive mark: it is an area free of the death penalty and, moreover, it has the conditions to somehow ‘export’ abolitionism at the international level, namely via the rules on judicial cooperation (Article 19(2) CFR).

However, it is a system where the repressive dimension of criminal sanctions still seems to prevail over rehabilitation, in spite of some positive developments in the area of judicial cooperation, which impact the configuration of the punitive system: for instance, the adoption of some legislative acts regarding rehabilitation, ⁵⁷ and the growing concern of national courts for the respect for fundamental rights in the field of mutual recognition procedures (e.g. the European Arrest Warrant). ⁵⁸