Eur J Crim Policy Res (2006) 12:107–120 DOI 10.1007/s10610-006-9010-7

Humanising Imprisonment: A European project? Dirk van Zyl Smit

Published online: 5 December 2006 # Springer Science + Business Media B.V. 2006

Abstract This paper focuses on the continued significance of human rights in the movement to develop a more comprehensive European framework to improve prison conditions. It identifies the immediate factors that underlie the movement as the successful implementation of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment and Punishment; the growing number of judgments of the European Court of Human Rights applying the European Convention for the Protection of Human Rights and Fundamental Freedoms to prison matters; the expansion of the number of member states of the Council of Europe; and the increased political interest at European level in penological matters. Attention is also paid to the wider ideological role that a concern for human rights plays in European criminal justice politics. The paper illustrates the reform movement by focussing on recent recommendations of the Council of Europe on various aspects of imprisonment, including the new European Prison Rules. The possible emergence of an international instrument of treaty status that would deal directly with substantive conditions of imprisonment is noted and its potential impact considered. An argument is made for the systemisation of European prison law and for further reform initiatives. Key words European prison rules . human rights . imprisonment . inhuman or degrading punishment . prison charter

Introduction We live in an era in which there is much pessimism about prison reform. The world prison population is continuing to grow1 and with it prison overcrowding and the evils attendant 1

The World Prison Population List estimates the overall world prison population in February 2005 as over 9 million as compared to 8.6 million at the end of 1998. This figure hides some large national changes. According to the same source, the prison population of the USA increased from 1 735 842 to 2 085 620, while the prison population for Russia declined from 1 009 863 to 763 054, over roughly the same period (Walmsley, 2005; compared to Walmsley, 2001).

D. van Zyl Smit (*) Professor of Comparative and International Penal Law, School of Law, University of Nottingham, University Park, Nottingham NG7 2RD, UK e-mail: [email protected]

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upon it. Accounts of the abuse of prisoners from many corners of the globe flood our news media. Surely there is reason to be pessimistic? From the perspective of the United States of America and even from some Western European countries it may seem that a massive increase in prison numbers and the decline of the prisoners’ rights movement offer few grounds for optimism. This paper argues that much of this pessimism is misplaced. In important parts of the world human rights discourse continues to be a key factor in prison reform. Discourse alone, of course, does not bring about change. It can and should be bolstered by best practice solutions supported by a system of inspection and monitoring. The paper describes how in Europe, and to a lesser extent elsewhere, a combination of a growing commitment to human rights and increased monitoring is having a positive effect. Although the number of prisoners has increased in the majority of European countries, which is a worrying tendency, it remains the case that the absolute numbers of prisoners in Europe have declined significantly in the last seven years: by a massive 23 per cent in Eastern Europe and 11 per cent overall.2 One may speculate that there is a relationship between the increased concern for human rights in Eastern Europe as the countries of the region have been drawn into complying with pan-European standards and the decline in absolute prison numbers. However, the focus of this paper is not primarily on these changes in numbers of prisoners or on developments in individual countries. Instead attention is directed to the factors that have combined to make humanising prisons a continuing project in Europe. The paper considers recent developments that embody this project and asks what direction this project should take in the future.

International Human Rights It is worth remembering that a framework of prison standards with a specifically human rights fundament is a relatively modern phenomenon. The early beginnings at the international level were halting. In 1934 the League of Nations prompted by the International Penal and Penitentiary Commission endorsed the first Standard Minimum Rules (Clifford, 1972). These rules were never given much international prominence and any momentum they may have had was lost in the conflagration of World War II. After the War, a determined effort was made to create a new world order that encompassed fundamental human rights. Thus the Universal Declaration of Human Rights recognised human dignity (Art. 1) and outlawed torture and cruel, inhuman or degrading treatment or punishment (Art. 5). This call was echoed in a similar prohibition in the European Convention of Human Rights in 1950 (Art. 3) and subsequently in the American Convention on Human Rights (Art. 5) and the African Charter on Human and Peoples’ Rights (Art. 3) and in the major general human rights instrument of the next generation, the International Covenant on Civil and Political Rights that came into force in 1976. These international conventions were reinforced in a myriad of national constitutions that recognised human dignity and built on the early prohibitions on cruel and unusual punishments in the Bills of Rights of England in 1689 and the Eighth Amendment to the 2 These percentages are calculated form the figures provided Walmsley in the sources quoted in footnote 1. For the purposes of these calculations the following counties are regarded as being in Eastern Europe: Armenia, Azerbajan, Belarus, Bulgaria, Cyprus, Georgia, Moldova, Romania, Russian Federation, Turkey and Ukraine. If the Baltic countries of Estonia, Latvia and Lithuania had been included, the percentage would have been higher still.

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Constitution of the United States of America a century later. By the early 1990s Bassiouni could report that “the right to be free from torture and cruel and degrading treatment or punishment is provided for in at least eighty-one constitutions” (Bassiouni 1993: 263). Over the years, the patchwork of these constitutions increasingly has given rise to the recognition of human rights in virtually all societies, a development that has been reinforced to a greater or lesser extent by the international and regional human rights instruments to which all these nations subscribed. But what did these instruments mean for prisons? An important aspect of the international instruments was that they did not concentrate solely on protecting prisoners but linked the positive duty on the authorities to respect the human dignity of prisoners with the negative duty to ensure that they are not punished or treated cruelly or inhumanely. Thus article 5(2) of the American Convention on Human Rights combines the two requirements in a single provision: “No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.” The International Covenant on Civil and Political Rights is another good example of a general international instrument that both outlaws certain kinds of punishment and treatment in and sets general standards for treatment. As the Human Rights Committee has commented: “The prohibition in article 7 is complemented by the positive requirements of article 10, paragraph 1, of the Covenant, which stipulates that ‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person’.”(United Nations 1992: General Comment 20, para 2). In fact the International Covenant on Civil and Political Rights went even further than the Human Rights Committee suggested. By acceding to the International Covenant on Civil and Political Rights all parties, including the USA from 1992 onwards, were binding themselves to a treaty that obliged them to ensure that their penitentiary systems should treat the prisoners in them with “the essential aim” of facilitating “their reformation and social rehabilitation” (Art. 10(3)). These statements are very general, however, and do not give us a clear idea of what a human rights driven prison system should look like. In the 1950s the United Nations first became involved in the process of answering this question. The result was that in 1955 a set of 94 Standard Minimum Rules for the Treatment of Prisoners was approved by the First United Nations Congress on the Prevention of Crime.3 The UN Standard Minimum Rules remain largely unaltered. They are not themselves binding international law but have served to interpret other international instruments, most notably the International Covenant on Civil and Political Rights. The use of the United Nations Standard Minimum Rules in interpreting international instruments, particularly the ICCPR by the Human Rights Committee, has led to a gradual increase of their status: In his work, The Treatment of Prisoners under International Law, Professor Nigel Rodley (1999: 281) has noted: “Although not every rule may constitute a legal obligation, it is reasonably clear that the SMR can provide guidance in interpreting the general rule against cruel, inhuman, or degrading treatment or punishment. Thus, serious non-compliance with some rules 3

Subsequently, in 1957 it was endorsed by the United Nations Economic and Social Council.

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or widespread non-compliance with some others may well result in a level of illtreatment sufficient to constitute violation of the general rule.”

European Standards It was against this background of recognition of the value of the UN Standard Minimum Rules that in the late 1960s the European Committee on Crime Problems was invited to develop a European version of the UN Standard Minimum Rules. There were two reasons for this: it was felt that a European version would further the effective application of the UN Rules in Europe and also that the European version would be able to reflect more accurately contemporary penal policy. To a large extent both these goals were achieved. The European Standard Minimum Rules were soon widely publicised. For example, an early commentary on the then revolutionary German Prison Act of 1976 reproduced the relevant rule of the European Standard Minimum Rules as an adjunct to the discussion of each individual section of the German Act (Grunau and Tiesler, 1982). Similarly, in Switzerland in 1976 already the Federal Constitutional Court (BGE (1976)) took them into consideration as a reflection of the legal convictions of the member states of the Council of Europe from which the Court would not easily depart when applying the Swiss Constitution to the regime to be followed in police detention. At both the United Nations level and at that of the Council of Europe the need for international standards that recognised new developments in penal policy was increasingly accepted. Various strategies evolved to meet this need. Both institutions developed specialist instruments to deal with specific areas of penal policy where standard setting seemed most imperative. At the UN level much was done in the area of juvenile offenders in particular: one thinks immediately of the United Nations Standard Minimum Rules for the administration of Juvenile Justice (the Beijing Rules) and the United Nations Rules for the Protection of Juveniles deprived of their liberty. At the European level the relatively flexible device of the Recommendation by the Council of Ministers was used almost annually, 32 times since the recommendation in 1962 on electoral, civil and social rights of prisoners.4 These recommendations have varied greatly in their scope and ambition. While some are very wide-ranging, others have dealt with very specific issues such as prison health care (Council of Europe, 1998) or education in prison (Council of Europe, 1989). Europe, perhaps more easily than the United Nations, has proved capable of tackling large issues of penal policy. Thus, unlike the United Nations, which has limited itself to very general declarations about prisoners’ rights and some specialist instruments, such as those for incarcerated juveniles, it has been prepared to amend its general Standard Minimum Rules. In 1987 they were comprehensively overhauled and renamed the European Prison Rules. The 1987 Rules were designed, as its explanatory memorandum noted: “to embrace the needs and aspirations of prison administrations, prisoners and prison personnel in a coherent approach to management and treatment that is positive, realistic and contemporary” (Council of Europe 1987: 33). Another revision was completed in early 2006, and the chances that it will be an even more powerful instrument for prison reform than its 1987 forerunner are high. What are the factors that have contributed to the current initiatives?

4

For an overview, see Kerner, (2004).

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Four Factors Facilitating Further Standard Setting The first of these factors is the implementation of the European Convention on the Prevention of Torture. I stress implementation rather than the Convention itself, for the key factor in extending the influence of this instrument has been the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment – the CPT as it is almost universally known. The CPT visits all places of detention of all kinds in European countries and produces reports on them. This is highly valuable in itself as their reports, which are eventually published, are a source of information and suggestions for improvement; both to countries concerned and to others who may read its reports5 However, the CPT has gone further. In each of its annual reports it produces some substantive general comments on desirable practices in detention facilities as well as descriptions of what it regards as totally unacceptable, that is inhuman or degrading. The CPT has not considered itself bound by the precise interpretations of these terms given by the European Court of Human Rights, which has allowed it to develop its own standards. The word ‘develop’ is key. The findings of the CPT are based on practical observation and are also evolutionary, thus allowing for the gradual improvement of standards in places of imprisonment and growing insight into the best practice for achieving them. The substantive comments in the CPT’s Annual General Reports have been extracted by the CPT and published in a booklet, The CPT Standards. Although this way of working means that the standards are not organised as a code and that they are therefore harder to apply systematically, this booklet is vital for anyone, not only in Europe but throughout the world, who wants an insight into current best practice. They have certainly been of great value to reformers and require close consideration in any new or updated recommendation in the penal field. The second factor has been the jurisprudence of the European Court of Human Rights. The European Court, together initially with the European Commission on Human Rights, is undoubtedly the world’s premier tribunal giving binding interpretations of international human rights standards. Large numbers of detainees and prisoners of all kinds have long turned to it for assistance. Initially, however, its reactions to these requests were mixed. Access to lawyers and fair disciplinary procedures were areas in which the Court was prepared to recognise Convention rights. The impact of these decisions was felt in the United Kingdom in particular where it was a driving force for prison law reform from the mid 1970s onwards. As late as 2000, however, Steven Livingstone, a late and much lamented colleague from Northern Ireland, could still conclude in his overview of prisoners’ rights in the context of the European Convention on Human Rights that procedural compliance with Convention standards had been more important to the Court than how prisoners were in fact treated. In his view, the Court in Strasbourg had done little more than legitimise the practice in most States in areas such as the prison conditions (Livingstone, 2000). This has changed dramatically in recent years: In the evocatively named case of Kalashnikov v. Russia (ECtHR 2002) the Court recognised that overcrowding alone could create prison conditions that constituted inhuman and degrading treatment that contravened Article 3 of the European Convention of Human Rights. Kalashnikov was held in grossly overcrowded conditions. Under these circumstances it did not have to be shown that the authorities had intended to humiliate or degrade him. Other aspects of imprisonment have also been found to contravene the prohibition of inhuman and degrading punishments by the Convention. These findings have not been 5

These reports are published by the Human Rights Centre at the University of Nottingham.

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limited to the under-resourced prison systems of Eastern Europe. It is now recognised, since the case of Van der Ven v. The Netherlands (ECtHR 2003) for example, that the frequency and method of body searching can also amount to a violation of Article 3. Unjustified, overzealous security and not only neglect may result in degrading punishment or treatment. Other Convention rights have also been applied in prison matters by the Court. In Messina v. Italy (2) (ECtHR 2000) the European Court of Human Rights recognised that the protection of family life in Article 8 of the Convention should be extended even to imprisoned members of the Mafia. The Court found that a regime that greatly restricted visits and any meaningful contact during them could violate the Convention unless there were clear justifications for such restrictions. On the facts, in this instance the restrictions on visits were justified but the restriction of family letters was not. Had there been a total ban on family visits that too would be presumably have fallen foul of Article 8. In all, the Court is now squarely involved in deciding on substantive prisoners’ rights. In its decisions it increasingly refers to both the existing European Prison Rules and the findings of the CPT. Like the CPT, its interpretations are being underpinned by what human rights lawyers call evolving standards of decency. All Europeans are bound to take note of these standards, in particular again the authors of penological recommendations and rules. The growing number of prisoners’ rights cases comes from both old and new member states of the Council of Europe, but it is clear that the accession of many new member states in Central and Eastern Europe is a third factor influencing the way in which European prison standards are developing. There are several reasons for this. New member states often have much higher imprisonment rates than old member states; this is coupled to the fact that they often have smaller per capita incomes and less state expenditure per citizen, which makes it harder for them to conform to European prison standards and rules. More specifically, many of them have only recently abolished the death penalty and have for the first time to deal with large numbers of prisoners serving life sentences: conversely there is also a particular need for forms of conditional release to reduce the over-reliance on imprisonment. It should be recognised that the traffic in new ideas is not only from West to East. For example, when it comes to intimate visits between prisoners and their partners, the Eastern European custom of allowing 72 hours or more for such visits is far more acceptable than the brief ‘conjugal visits’ customary in some Western countries, which can be humiliating for both the prisoner and the partner. A fourth factor is the increased political activity at a European level around prison issues. In various European bodies there are politicians who are prepared publicly to support the calls for improvements to conditions of imprisonment, for the humane treatment of offenders in the community and for various new instruments to ensure that this is done. In recent years the Parliamentary Assembly6 of the Council of Europe, that is the body representing the elected parliaments of all 46 member States of the Council, has taken the lead. In 1995 and again in 2004, it expressed concern about prison conditions in Council of Europe member States. Also significant is the careful way in which the Parliamentary 6 The Parliamentary Assembly is the parliamentary organ of the Council of Europe consisting of a number of individual representatives from each of the 46 member States. The number of representatives is determined by the size of the country. They are appointed to the Parliamentary Assembly in a manner that is left to the decision of each member state, as long as they are elected within their national or federal parliament, or appointed from amongst the members of that parliament. The biggest number is 18, the smallest two. As there are an equal number of representatives and substitutes, the total number of members of the Assembly is therefore 630, plus 18 observers. The balance of political parties within each national delegation must ensure a fair representation of the political parties or groups in their national parliaments. See http://assembly.coe.int/Main.asp?link=/AboutUs/structures.htm accessed 3 June 2005.

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Assembly referred back to the work of the CPT in shaping standards and to the parallel initiatives being undertaken by the European Parliament. The European Parliament, the directly elected assembly of the 25 member states of the European Union, too has weighed in on several occasions. In its recommendation on the rights of prisoners of 9 March 2004, for example, it too linked these rights to the work of the CPT and very specifically to the prohibition on torture and inhuman or degrading treatment in article 3 of the European Convention of Human Rights, as well as a range of other international human rights instruments. It is significant what the European Parliament draws out of the Convention. It notes in the introduction to its most recent resolution that “... Article 3 of the European Convention on Human Rights and the case-law of the European Court of Human Rights impose on the Member States not only negative obligations, by banning them from subjecting prisoners to inhuman and degrading treatment, but also positive obligations, by requiring them to ensure that prison conditions are consistent with human dignity and that thorough, effective investigations are carried out if such rights are violated” (European Union, 2004: Para E. Emphasis added.). This passage provides the link from human rights norms to the obligation to take positive steps. Both the Parliamentary Assembly and the European Parliament have done so. They have explicitly gone beyond expressing concern for prisoners’ welfare to calling for the strengthening of general, Europe-wide protection for the position of prisoners. This manifested itself in a dual call for the work on the new European Prison Rules, which had already begun at the time of the latest initiatives, to be expedited and for it to be complemented by a European Prison Charter that would be binding on member states. There is an interesting aspect of Realpolitik in the approach adopted by the European Parliament. Thus far it has been prepared to leave the process of developing the Prison Rules and possibly a Prison Charter to the Council of Europe, which has among its members a wider set of European states including, of course, all the members of the European Union. However, the European Parliament has recently declared in terms “that should this exercise not be completed in the near future, or should the outcome prove unsatisfactory, the European Union will draw up a Charter of the rights of persons deprived of their liberty which is binding on the Member States [of the European Union]” (European Union, 2004: Para O 1(c). One reason for this sense of urgency is that the recently introduced European arrest warrants (European Union, 2002) following on the more established European Community Convention on the Enforcement of Foreign Criminal Sentences of 13 November 1991,7 increasingly require European Union states to be confident that prison standards will be roughly similar within the European Union, if not within the wider European territory covered by the Council of Europe.8 It is important to reflect on the nature of the political activity revealed in these pronouncements. Clearly they contain a pragmatic element in that an increasingly united European criminal justice system requires a growing degree of interchangeability at the national level. However, most striking is that the movement for prison reform is increasingly cast in human rights terms. Here there is a strong parallel with the history of 7

Adopted in Brussels on 13 November 1991. To some extent the same arguments apply within the territory of the Council of Europe which has the (less restrictive) Convention on the Transfer of Sentenced Persons adopted on 21 March 1983 (Council of Europe, 1983) which is also open to non-members of the Council of Europe. 8

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the abolition of the death penalty in Europe. Frank Zimring (2003: 40) has shown convincingly how the abolition of the death penalty went through two phases in Europe: first, abolition as a result of national debates, largely completed in Western Europe by the early 1980s and projected eastwards after the fall of the Soviet Union in 1989; and secondly, “the reframing of capital punishment as a violation of human rights that must be prohibited by civilised governments”. There is a difference in the human rights norms regarded as of primary relevance. In the case of the death penalty the right to life has been key, while in the case of imprisonment it has been the right not to be subject to torture or to inhuman or degrading treatment or punishment together with specific protections of family life and privacy. However, the trend is largely similar. The major prison law reforms in Europe were initially largely driven by internal factors: the exemplary German Prison Act of 1976 was a product of the flowering of socio-democratic constitutionalism of that era (Lazarus, 2004); and the equally impressive Spanish prison legislation was passed in the heady freedom of the immediate post Franco era (Giménez-Salinas i Colomer, 1991); while the 1997 Polish Code on the Execution of Penalties was part of a complete legal overhaul of the criminal justice system that followed the collapse of the totalitarian Polish government in 1989 (Standa-Kawecka, 2001). More recently, however, what is regarded as acceptable in prisons in these and other European countries has been influenced more closely by the pan-European developments I have described. The European human rights discourse and the practical measures proposed by treaty bodies such as the CPT have revived flagging local liberal reforms. In particular, the interpretation of human rights norms as placing a positive duty on the state has made it easier to continue to focus on requirements of what precisely needs to be done. One recent illustration of this process is to be found in the Scottish case of Napier v. The Scottish Ministers (2004). In Scotland it was long the custom for prisoners to be held in cells without access to lavatories. At night they had to use chamber pots which had to be “slopped out” in the mornings. In 1994 this practice had been subject to “trenchant criticism” (Napier v. The Scottish Ministers 2004: 585) by the CPT, which was told in mitigation by the Scottish Prison Service that integral sanitation would be introduced in all cells by 1999. This had not been done by 2001, as the Scottish Executive had elected to spend money earmarked for prisons elsewhere. In that year Mr Napier was admitted to prison in Glasgow while awaiting trial. As a result of the unsanitary conditions in the prison he suffered from severe eczema and sued for damages in the Scottish Courts, based on the infringement of his right not to be subject to inhuman and degrading treatment under the European Convention of Human Rights, which is now applicable directly in Scots law.9 In its judgment the Court referred to the report of the CPT and drew a negative conclusion from the failure of the Scottish Executive to implement the changes it had admitted were necessary. It noted that the conditions did not comply with recommendations in respect of sanitary facilities of both the UN Standard Minimum Rules for the Treatment of Prisoners and the European Prison Rules Finally, the Scots court gave considerable weight to the many recent judgments of the European Court of Human Rights which have interpreted the duty of states to ensure that prison conditions are not inhuman or degrading more strictly than had been the case in the early years of the Convention. The outcome was not only that Mr Napier won his case but that urgent steps are also having to be taken to ensure that the practice of “slopping out” is discontinued throughout Scotland. 9

The Scottish authorities were liable on two grounds. First, the 1998 Human Rights Act made the authorities liable for breaches of the provisions of European Convention on Human Rights and secondly, s 57 (2) of the Scotland Act (the law that devolved power to the Scottish Assembly) provides that members of the Scottish Executive have no power to do anything which is incompatible with Convention rights.

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Recent Initiatives of the Council of Europe At the European level recent developments suggest that the emphasis on human rights in European prison reform initiatives will increase. Consider in this regard some recent initiatives of the Council of Europe: The first of these is the 2003 recommendation of the Committee of Ministers of the Council of Europe concerning the management by prison administrators of lifesentence and other long-term prisoners (Council of Europe, 2003). Its adoption illustrates how the factors I have discussed coalesce. The CPT in its 11th Annual Report in 2001 paid particular attention to this topic, noting that “In many European countries the number of life-sentenced and other long-term prisoners is on the increase. During some of its visits, the CPT has found that the situation of such prisoners left much to be desired in terms of material conditions, activities and possibilities for human contact.” (European Committee for the Prevention of Torture 2001: 17). The CPT went on to make a number of specific proposals that have found their way into the new Recommendation on these prisoners. The European Court of Human Rights has dealt with life imprisonment in a number of cases. Some have concerned release procedure,10 but others have dealt with the conditions of imprisonment of persons who were first detained under sentence of death. However, their subsequent detention under very restrictive regimes, after their sentences had been changed to life imprisonment, has also played a part in finding contraventions of the Article 3 prohibition on torture and inhuman or degrading treatment or punishment. Most of these cases come from new member states.11 This jurisprudence is useful, as many of the new member states are having to deal with the implementation of sentences of life imprisonment for the first time. What is notable about the new recommendation is that it adopts a highly principled approach to the growing problem posed by lifers and other long term prisoners in many European countries. It emphasises that these prisoners, even if they committed heinous crimes that justify the ultimate penalties that may now be imposed, still are ordinary prisoners and should be seen as individuals. They should not be put in separate units. They are not necessarily the prisoners presenting the highest risks, either in the sense of posing a danger to other prisoners or because they are highly likely to escape. More fundamentally, they should not be segregated because the prison authorities do not have a duty to punish them more harshly than others. The long sentence itself is the punishment. What prisoners serving life and other long sentences need is a regime that allows them to live as normal a life as possible and to be given responsibilities within prison that will enable them to continue to develop their own personalities. This principled position may impact on an issue which is still unresolved in Europe, namely, whether so-called whole life sentences, (what Americans call LWOP, life without parole) in which the prisoner has no prospect of release, are acceptable in Europe. In a major judgment as long ago as 1977 the German Federal Constitutional Court ruled that a life sentence without a realistic prospect of eventual release would be contrary to the principle of human dignity (BVerfGE 45 187, a view that has been echoed by courts of similar status in Italy (Corte costituzionale della Repubblica Italiana (1983)) and France (Cour de Cassation (1994)). On the other hand, the House of Lords in England in the case of the notorious murderess, Myra Hindley, rejected such an argument (R v. Secretary of State for the Home Department, ex parte Hindley (2000)). The matter was 10

For example, Weeks v. United Kingdom (1998) and Stafford v. United Kingdom (2002).

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Iorgov v. Bulgaria and G.B. v. Bulgaria, both decided on 11 March 2004 are examples in point.

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taken on appeal to Strasbourg but she died before the European Court on Human Rights could rule finally on it. The argument that every prisoner, no matter how bad, should have at least the prospect of release is a powerful humanitarian one, particularly from the point of view of the prison administrator who has to deal daily with such offenders. It seems to me that the tenor of the latest recommendations supports an eventual ruling that may ensure that all lifers are at least considered for release at some stage and that at that stage their release can only be refused if they continue to be dangerous. My second example is the recommendation of the Committee of Ministers adopted in 2003 which deals with conditional release - parole as it is called in many jurisdictions (Council of Europe, 2003a). It too is a product of the factors I have outlined. The recommendation builds closely on earlier recommendations, particularly the recommendation concerning prison overcrowding and prison population inflation. What the latest recommendation seems to imply is that conditional release offers a way of better adapting sentences to the individual circumstances of offenders, while at the same time reducing high prison populations and the costs that go with them. The solution of conditional release and the careful procedural guidelines spelt out in the Recommendations, as well as the attention to the sort of conditions that can be imposed, all speak strongly to the European commitment to human dignity. There is growing recognition at the European level that all imprisonment is an infringement of human rights and that not only must it be implemented as humanely as possible but also its duration should be kept to the minimum, by ensuring that it is only imposed as a last resort and that early release is allowed wherever possible (See Snacken, 2005). Thirdly, the new European Prison Rules (Council of Europe 2006) continue and even strengthen this human rights emphasis. The new Rules make their commitment to the human rights of prisoners even clearer than its predecessors did. Rule 1 of the draft states simply: “All persons deprived of their liberty shall be treated with respect for their human rights”. It also backs this up with a clearer specification of specific obligations of the prison authorities to all prisoners in respect of medical treatment and in respect of conditions of work for prisoners, to pick just two examples. Of particular interest is new separate part on inspection and monitoring both by government and independent bodies at a national and local level. Such independent inspections, the Rules require, should be co-ordinated with the inspections of international agencies. It is envisaged that this will provide a further conduit for best practice to inform the further evolution of prisons that meet human rights standards.

Future European Developments Both the Parliamentary Assembly of the Council of Europe and the European Parliament want the humanization of European prisons to go further. They have now endorsed the idea of a European Prison Charter that should be directly binding on governments, even while recognising that the revised European Prison Rules are likely to meet many of their concerns.12 It is not yet sure whether such a Charter will emerge or, if it does, whether the member states of the Council of Europe will ratify it. The idea continues to be mooted, however. At 12

The ambitions of the proponents of the Charter were expressed forcefully by one of its proponents Mr Turco, a Member of the European Parliament who explained as guest speaker at a key debate on prison matters of the Parliamentary Assembly of the Council of Europe last year: “There was also a large body of ‘soft’ law which needed to be turned into ‘hard’ law in terms of national and international law. In that way, non-compliant states could be subjected to sanctions.” (Council of Europe, 2004).

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their most recent meeting in Helsinki in April 2005 the European ministers of justice not only pressed for the updated European Prison Rules to be adopted as soon as possible, but also supported further work on a European Prison Charter to be undertaken once the Rules have been approved.13 My own view is that the ideal of a binding Charter or Convention that encompasses all the details of prison law now contained in the new draft European Prison Rules is too ambitious. There is, however, an urgent need for systemisation of the various recommendations into a coherent whole. I hope the Council of Europe will at some stage tackle this large task. What I envisage is a clear hierarchy, perhaps with a Prison Charter setting out binding prison law at its apex. Such a Charter would start with general principles very similar to those of the first part of the draft European Prison Rules. It would then summarise in more general wording the most important substantive ideas contained in the new European Prison Rules but would of course not legally bind states to every detail of the Rules. The European Prison Rules will then operate at the next level with enough detail to guide practice generally and to serve as basis for interpreting the Charter. Very specific aspects of prison life, to take a single example, the ability of prisoners to take part in public life as voters or electors, could then still be dealt with by more detailed recommendations of the kind Europe already has.

Strategies for Encouraging Reform What can be done to increase the tempo of reform? Fortunately, there are indications that remedies, which have already achieved some success in Europe, are increasingly open to wider use as the impact of Europe-wide standards grow and are increasingly given the force of law. And there is some crossfertilization from outside Europe too. One way in which human rights ideas are spread is when courts that have the authority to apply them take into account the developments that are taking place in other jurisdictions. A powerful recent example of this was when the pathbreaking ruling of the Supreme Court of Canada (Suavé v. Canada 2002) asserting the right of all prisoners to vote in the absence of a clear governmental justification for denying them this right was followed first by the Constitutional Court of South Africa (Minister of Home Affairs v. National Institute for Crime Prevention and the Reintegration of Offenders and others (2004)) and shortly afterwards by a ruling of the European Court of Human Rights that overturned the long established law preventing sentenced prisoners from voting in the United Kingdom (Hirst v. United Kingdom (no 2) (2004)). Secondly, careful standard setting and monitoring of prison conditions can contribute greatly to prison reform. However, it is important that this goes hand in hand with a focus on human rights, for, as Liebling (2004) has demonstrated in England, the setting of Key Performance Indicators without linking them to more fundamental human rights can be a sterile exercise. Morgan (2000; 2001) has drawn an interesting comparison between the standards set by the American Correctional Association and those being developed by the CPT and the different roles played by these standards. The former are designed primarily by professional prison practitioners to allow prisons to be accredited as meeting easily measurable norms. Prisons, which are so accredited by a professional body, are able to use 13

See Resolution No. 4 on the updating of the European Prison Rules and on the possibility of a European Prisons Charter adopted at the 26th Conference of European Ministers of Justice in Helsinki, 7–8 April 2005 (Council of Europe, 2005).

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this accreditation to defend themselves against court actions. In contrast, the standards of the CPT evolve constantly and are driven by a broader human rights agenda, which allows the CPT to ask wider questions about the desirability and necessity of using detention or continuing the imprisonment of a sentenced prisoner. While the findings of the CPT may also be of relevance in litigation, it has developed concepts such as “inhuman or degrading” when applied to treatment or punishment in prison beyond the strict confines of legal definitions. Thus the CPT has asked questions, for example, about the necessity for using maximum-security prisons, which might not immediately be inhuman or degrading but have that effect in their long-term impact on prisoners. There is now a real possibility that a process of proactive inspection similar to that of the CPT will be extended worldwide. In February 2003, after a decade of protracted negotiations (Association for the Prevention of Torture, 2004: 31–56), an Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)14 was opened for signature and ratification. If this protocol is ratified by a sufficient number of countries to allow it to enter into force,15 it will provide for inspections of all forms of detention in the countries that accede to it in all parts of the world. One factor that may encourage states to ratify the OPCAT is that it may facilitate international extradition. States are making an increasing number of requests for extradition of offenders. They are finding, however, that these requests are only being granted if the extraditing state is convinced that the state requesting the extradition will not violate the human rights of the person whose extradition is being sought. Positive reports from inspections conducted in terms of the OPCAT will be powerful evidence that the human rights of extradited prisoners will be recognised.

Conclusion The developments that I describe present exciting intellectual challenges. Prime amongst these is the further specification of what the human rights norms that enjoy universal recognition mean in practice for prisoners. Secondly, the challenge is to ensure that mechanisms are created to ensure that the necessary practical steps are taken to guarantee these rights for prisoners. This should go hand in hand with strategies to reduce the prison population. For example, the insistence on adequate accommodation for all prisoners may well contribute to reduced prison populations in poorer European countries at least - a tendency which is already visible. There is much on which we can build already. There are also dangers. One of these is that a failure by the Council of Europe to develop even a restricted, legally binding European Prison Charter could result in the European Union going it alone. The price of an EU-only Charter would be the acceptance that prisoners are better protected in some parts of Europe than others. As the majority of Europe’s prisoners are in countries outside the European Union, this would potentially disadvantage many hundreds of thousands of prisoners. I hope that it will be recognised by all European states that, while the 2006 European Prison Rules represent a positive achievement, a carefully drafted Charter to which all European states could accede would 14

Adopted as a resolution of the General Assembly of the United Nations by resolution on 18 December 2002 (United Nations, 2002), the OPCAT has been available for signature, ratification and accession since 4 February 2003.

15

(United Nations, 2002) OPCAT must be ratified by 20 states for it to enter into force: Article 28 of the Protocol. By June 2005 there were 10 ratifications and 37 signatories to the Protocol.

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provide important further protection for prisoners. The Rules would be complemented rather than overtaken by such a Charter, which would offer legal guarantees to underpin key provisions of the Rules. References Association for the Prevention of Torture (2004). Optional protocol – A manual for prevention. Geneva: Association for the Prevention of Torture/ Inter-American Institute of Human Rights. Bassiouni, M. C. (1993). Human rights in the context of criminal justice: Identifying international procedural protections and the equivalent protections in national constitutions. Duke J Comparat Int Law, 3, 263. Clifford, W. (1972). The standard minimum rules for the treatment of prisoners. Am J Int Law, 66, 232–236. Council of Europe (1987). The European prison rules. Strasbourg: Council of Europe Publishing. Council of Europe (2004). Report of the Eleventh Ordinary Sitting of the Parliamentary Assembly of Tuesday 27 April 2004. Retrieved September 30, 2005, from http://assembly.coe.int/Main.asp? link=http://assembly.coe.int/documents/records/2004–2/e/0404271500e.htm . Council of Europe (2005). Resolution No.4 of the European Ministers of Justice adopted at the 26th Conference of European Ministers of Justice, Helsinki, 7–8 April 2005 (MJU-26 (2005) Resol. 4 Final). Retrieved September 30, 2005, Full text available at http://www.coe.int/T/E/Legal_affairs/Legal_cooperation/Conferences_and_high-level_meetings/European_Ministers_of_Justice/MJU-26%282005% 29Res4E.asp#TopOfPage. European Committee for the Prevention of Torture (2001) 11th General Report on the CPTs Activities covering the period 1 January to 31 December 2000. Strasbourg: Council of Europe. European Union. (2002). Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. OJ L 190, Vol. 45. 18.07.2002. Giménez-Salinas i Colomer, E. (1991). Spain. In D. van Zyl Smit & F. Dünkel (Eds.), Imprisonment today and tomorrow international perspectives on prisoners’ rights and prison conditions (pp. 455). Deventer: Kluwer. Grunau, T., & Tiesler, E. (1982). Heymans Taschenkommentare:Strafvollzugsgesetz. Köln: Carl Heymans. Kerner, H-J. (2004). Empfehlungen des Europarates zum Freiheitsentzug 1962–2003. Bad Godesberg: Forum. Lazarus, L. (2004). Contrasting prisoners’ rights: A comparative examination of England and Germany. Oxford: Oxford University Press. Liebling, A. (2004). Prisons and their moral performance. Oxford: Oxford University Press. Livingstone, S. (2000). Prisoners’ rights in the context of the European convention on human rights. Punishment and Society, 2, 309–324. Morgan, R. (2000). International controls on sentencing and punishment. In M. Tonry & R. Frase (Eds.), Sentencing and sanctioning in Western countries (pp. 379–403). Oxford: Oxford University Press. Morgan, R. (2001). Developing prison standards compared. Punishment and Society, 2, 325–342. Rodley, N. S. (1999). The Treatment of Prisoners under International Law (2 ed). Oxford: Oxford University Press. Standa-Kawecka, B. (2001). Poland. In D. van Zyl Smit & F. Dünkel (Eds.), Imprisonment Today and Tomorrow International Perspectives on Prisoners’ Rights and Prison Conditions (2 edn). The Hague: Kluwer. Snacken, S. (2005). Bestraffing, vrijheidsberoving en mensenrechten. Een reductionistisch strafbeleid in mensenrechtelijk perspectief. In Brems, E., Sottiaux, S., Vanden Heede, P., Vandenhole, W. (Eds.), Vrijheden en vrijheidsbeneming. Mensenrechten van gedetineerden (pp. 323–353). Antwerp Oxford: Intersentia. United Nations (1992). Human Rights Committee, General Comment 20, Article 7, (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.l at 30 (1994). Walmsley, R. (2005). World Prison Population List (6 edn). London: International Centre of Prison Studies. Walmsley, R. (2001). World Prison Populations –An attempt at a complete list. In D. van Zyl Smit & F. Dünkel (Eds), Imprisonment Today and Tomorrow International Perspectives on Prisoners’ Rights and Prison Conditions (2 edn). The Hague: Kluwer. Zimring, F. E. (2003). The contradictions of American capital punishment. New York: Oxford University Press.

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