uction 3

1 nos. 6–7).5 This concept can also be found, for example, in the constitution of2 the Federal Republic of Germany of 1949, the Basic Law (Herdegen 2005: nos.3 1–3; Remmert 2009), and it is also valid for prisoners in Europe (van Zyl Smit4 and Snacken 2009: 64–7; Golder v the United Kingdom, ECtHR final judgment5 of 21 February 1975, Application no. 4451/70; BVerfGE 33: 1–18; but see6 Lippke 2007: 129–49). Imprisonment as punishment itself interferes with the7 right to liberty of Art. 5 of the ECHR; other rights such as the rights to respect8 for private and family life (Art. 8) and freedom of thought (Art. 9) can be vio-9 lated as well. Living conditions in prison may even amount to inhuman or10 degrading treatment in the sense of Art. 3 of the ECHR (see Chapter 5, this11 volume). This shows that the implementation of the concept that prisoners retain12 their fundamental human rights while in prison is an ongoing struggle (van Zyl13 Smit 2006) and that it still seems as if human rights are rather bestowed on14 prisoners than a given.15 As to the purpose of punishment in general and imprisonment in particular, it16 is debated whether punishment means retribution or if the purpose is prevention17 with a view to the general public (general prevention through deterrence or norm18 affirmation) or to the individual offender (special prevention through deterrence,19 rehabilitation or incapacitation) and how restorative justice comes into play (see20 the overview in van Zyl Smit and Snacken 2009: 73–6; Walter 1999). Roxin21 (1966) presented a model that integrates all aspects but restorative justice by22 attributing them to one of three tiers of the criminal justice system (Vereinigung23 stheorie; see also van Zyl Smit and Snacken 2009: 74). The first tier is the crim24 inal law that describes certain acts for which it holds out the prospect of25 punishment. 2627 Cat despre scopul pedepse in general si al incarcerarii in special, este dezbatut daca pedeapsa inseamna

retributie sau dcaa scopul sau este preventia cu privire la publicul general – preventive generala prin descurajare sau afirmare a normei- sau cu privire la infractorul individual - preventive speciala prin descurajare, incapacitare si reabilitare si modul in care Justitia restaurativa intervine. (see

28 the overview in van Zyl Smit and Snacken 2009: 73–6; Walter 1999) Roxin 1966 prezinta un model care integreaza toate aspectele justitiei restaurative prin atribuira lor unuia dintre cele trei esalonae ale sistemului penal. (Vereinigungstheorie; see also van Zyl Smit and Snacken 2009: 74).primul esalon este cel al dreptului penal care descrie anumite fapte clare pentru care prezinta posibilitatea unei pedepse.

29 The criminal law addresses the public and therefore serves general30 prevention. On the second tier, the sentencing of individual offenders, retribution31 is the aim with the postulate that sentences be proportionate to the guilt that the32 offender has incurred. The third tier is the execution of sentences; here, the33 purpose is special prevention with efforts at rehabilitation and reintegration of34 the convict (see also van Zyl Smit and Snacken 2009: 73–4). This purpose of the35 execution of prison sentences may be found not only in the German law (s. 2 of36 the Federal Prison Act; BVerfGE 33: 1 [11–12]), but also in other European37 jurisdictions6 and at the international level of the Council of Europe (van Zyl38 Smit and Snacken 2009: 78–80; see also Chapters 4, 5 and 6, this volume). The39 prospects for success of preparations for a future crime-free life will be better in40 an environment that respects and protects prisoners’ human rights, because41 prisoners do not waste (as much) energy that is needed for reform in the daily42 struggle for physical and psychological survival.7

43 dreptul penal se adreseaza publicului si astfel serveste preventiei generale. Al doilea esalon este cel al condamnarii infractorilor individuali, retributia fiind scopul in sine cu postulatul ca sentinta sa fie proportional cu vina autorului. Al treilea esalon este cel al executarii pedepsei cu scopul de prentie speciala prin eforturile de reabilitare si reintegrare a detinutului. see also van Zyl Smit and Snacken 2009: 73–4) acest scop al executiei sentintelor cuinchisoare poate fi gasit nu numai in legile germane dar si in legile

altor tari si la nivel international in Consiliul Europei. van Zyl Smit and Snacken 2009: 78–80).perspectivele de success ale pregatirii pentru un viitor lipsit de criminalitate vor fi imbunatatie intr-un mediu care respecta si protejeaza drepturile omului deoarece detinutii nu consuma atata energie cat este necesara pentu reformare in lupta zilnica pentru supravietuirea fizica si psihica.

44 These arguments are also valid for long prison sentences such as life sen-45 tences and other indeterminate criminal sanctions that deprive liberty, as well as46 long determinate sentences. However, for these prisoners, human rights prob-47 lems seem to become even more urgent than for prisoners in general. Most48 long-term prisoners are incarcerated for very serious offences and are therefore49 often deemed to be dangerous. 50 Aceste argumente sunt valide si pentru sentintele lungi cum ar fi sentintle pe viata si alte sanctiuni

nedeterminate privative de libertate, ci si de sentintele determinate mai lungi. Totusi, pentru acesti prizonieri, problemele legate de drepturile omului par sa devina mai urgente decat pentru ceilalti prizonieri. Majoritatea detinutilor pe termen lung sunt incarcerate pentru infractiuni serioase si de aceea sunt considerati periculosi, cee ace poate duce la restrictii si politici de Securitate marite.

51 This may lead to reinforced security precautions

52 and other restrictions, although it might not be clear to what the alleged

1 in the project (Figure 1.1), Belgium, England and Wales and Poland saw a rise2 in the proportion of long-term prisoners until the mid-2000s, but since then there3 has been a decrease in Belgium and England and Wales, while the percentage of4 long-term prisoners in Poland has stayed at 14–15 per cent. In most other coun-5 tries, the percentage has remained stable. Although the proportions differ6 considerably, the differences are not as extreme as in the whole EU, where in7 2010 there were five countries with more than 50 per cent longterm prisoners8 with a maximum of 73 per cent in Greece. Even in countries with a small per-9 centage of long-term prisoners, the absolute numbers may still be substantive,10 like in Germany with more than 7,500 long-termers or Poland with more than11 10,000 in 2010. So, in the EU member states as well as in most countries that12 participated in this project, longterm prisoners are a quantitatively significant13 group that demands attention. More details on the general situation of the prison14 estate in the participating countries are provided in Chapter 6. 1516

The European framework of human rights1718 Within the supra-national framework of the EU, these problems gain greater sig-

19 nificance due to the inherent threat to the shared values and the particular nature.

With the proclamation of the Charter 1of Fundamental Rights in 2000, the EU explicitly recognized the validity of 2human rights as one of its cultural foundations. Although the Charter came into 3effect only in December 2009 with the ratification of the Lisbon Treaty, there 4had already been a common, legally binding system of human rights protection 5in the EU, but not by the EU. All member states of the EU are also member 6states of the Council of Europe and have ratified the ECHR. Convention com- 7pliance may be assessed before the ECtHR in an individual complaints pro- 8cedure. This is also the case for Poland and the UK where the application of the 9EU Charter of Fundamental Rights at present is restricted to those rights that 10exist in national law.9 Furthermore, the recommendations by the Committee of 11Ministers of the Council of Europe to member states substantiate the ECHR. 12These recommendations are non-binding, soft law, but the ECtHR refers to them 13when interpreting the ECHR.10 Concerning long-term imprisonment, the most 14important recommendations are Rec(2003)23 on the management by prison 15administrations of life-sentence and other long-term prisoners (Recommendation 16on long-term prisoners) and the EPR. The latter in particular describe minimum 17

standards of living conditions for prisoners. 18However, there is a lack of internationally comparative research on the imple- 19

mentation of human rights in European prison systems (van Zyl Smit and 20Snacken 2009: 27–8). Apart from the long-term imprisonment project, there are 21only two studies: the Mare Balticum Prison Study on closed institutions for male 22prisoners in Estonia, Finland, Germany, Latvia, Lithuania, Poland, Russia and 23Sweden (Dünkel 2007) and the International Study on Women’s Imprisonment 24on the living conditions of female prisoners in Croatia, Denmark, Germany, 25Greece, Lithuania, Poland, Russia, Slovenia and Spain (Dünkel et al. 2006; 26Zolondek 2007). This previous research showed that living conditions in prison 27still differed considerably across countries and there were still problems con- 28cerning the protection of human rights (Dünkel 2009). 29

Considering the main principles of judicial cooperation in criminal matters in 30the EU, this lack of knowledge is very problematic. Legislation by the EU in this 31field is based on the principle of mutual recognition of judicial decisions by 32member states. The implementation of European legal decisions requires the 33second principle of judicial cooperation, mutual confidence. This includes assur- 34ance in belonging to a common judicial culture and to have a common and high 35level of protection for personal rights. Concerning custodial sanctions, there is a 36framework decision on the application of the principle of mutual recognition to 37the transfer of sentenced persons.11 It allows for the transfer of prisoners without 38their consent or that of the receiving state from the member state where the 39prisoner has been sentenced to the member state of her or his nationality for 40the execution of the sentence. The principle of mutual confidence is only men- 41tioned in the preamble with reference to procedural rights in criminal proceed- 42ings, although it must also apply to the execution of a sentence if personal rights 43and freedoms are to be protected consistently. Keeping in mind that the true 44severity of a prison sentence depends not only upon its length, but also on the 45

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Introduction 7

1 conditions of its execution, the significance of this principle is evident for the2 protection of human rights in prison. In order to justify mutual confidence, there3 is the need not only for similar living conditions in prisons across the EU, but4 also for living conditions that are in line with the EU’s common human rights5 standards.678 Notes9 1 In the United Kingdom of Great Britain and Northern Ireland, there are three different

10 prison systems: the Northern Irish, the Scottish, and the English and Welsh. For this11 study, only prisons in England were surveyed.12 2 For a comparison of prisoners’ rights in England and Germany, see Lazarus (2004).13 3 That the deprivation of liberty in criminal proceedings is not a pressing issue for

German constitutional scholars, for example, is illustrated by the fact that the com-14 mentary on Art. 104 (restrictions of the right to liberty) of the German Constitution15 has not been updated in Maunz/Dürig – one of the most influential commentaries on16 the German Constitution – since the first edition in 1958 while the rest of this publica-17 tion is constantly revised.18 4 Of course this was not the beginning of the debate about universal human rights, see

e.g. Greer (2006: 2–8); Grothe (2006: ch. 1, nos. 1–6), but after the atrocities of the19 war the human rights movement in Europe gained momentum (Meyer-Ladewig 2011:20 Einleitung no. 1; van Zyl Smit and Snacken 2009: 5–10).21 5 On the drafting process of the Convention, see Grothe (2006: ch. 1, nos. 21–30).22 6 In some European countries, the right to preparation for a future crime-free life is23 even regarded as a principle derived from constitutional provisions or explicitly laid

down in the constitution (e.g. Germany, Spain).24 7 For a defence of prisoners’ rights from a retributionist perspective, see Lippke (2007).25 8 Cf. e.g. the reports on visits by the CPT (2012) to France in 2003 (ss. 33–42), to Italy26 in 2004 (ss. 89–91) and to the Czech Republic in 2006 (ss. 40–58).27 9 Protocol on the application of the Charter of Fundamental Rights of the European28 Union to Poland and to the United Kingdom, Official Journal of the EU 2007/C

306/01, 11/17/2007.29 10 Some national courts refer to the recommendations as well when interpreting domestic30 law: BVerfGE 116: 69; Swiss Federal Court, judgment of 12 February 1992, BGE31 118 Ia, 64.32 11 Council Framework Decision 2008/909/JHA of 27 November 2008 on the application33 of the principle of mutual recognition to judgments in criminal matters imposing cus-

todial sentences or measures involving deprivation of liberty for the purpose of their34 enforcement in the EU; implementation until 5 December 2011.353637 Bibliography3839 CPT (2012) States: Documents and Visits. Online. Available at: www.cpt.coe.int/en/

states.htm (accessed 29 April 2013).40 Dünkel, F. (2007) ‘Strafvollzug und die Beachtung der Menschenrechte’, in H. Müller-41 Dietz et al. (eds) Festschrift für Heike Jung, Baden-Baden, 99–126.42 Dünkel, F. (2009) ‘International vergleichende Strafvollzugsforschung’, in H.J. Schneider43 (ed.) Internationales Handbuch der Kriminologie, Band 2, Berlin, 145–226.44 Dünkel, F., Drenkhahn, K. and Morgenstern, C. (eds) (2008) Humanisierung des Strafvol45 lzugs, Mönchengladbach.

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International rules on long-term prisoners 37

1 of dangerous prisoners, R(82)16 on prison leave and Rec(2003)22 on conditional2 release are the more relevant ones. 34

The European Prison Rules5

6 The EPR are an extensive set of rules that relate not only to sentenced prisoners,7 but to all persons who are detained in prison – irrespective of the domestic label8 of the institution (rule 10; Commentary 2006: 42–3). They were preceded by9 R(73)5 on the European Standard Minimum Rules for the Treatment of10 Prisoners, with which the Committee of Ministers tried to adapt the SMR to the11 situation in Europe at the time, and R(87)3 on the European Prison Rules that12 were a revision of R(73)5 with a view to the development of prison research and13 practice and a positive, realistic and contemporary approach (Commentary 2006: 14 39; Haverkamp 2011: 46–8; van Zyl Smit 2006: 110; Walmsley 1995: 73). The

15 latter have again been revised and adopted in their new version in 2006. During16 the almost 20 years since the EPR of 1987, the European discourse on human17 rights in prison had evolved considerably: the CPT took up its work and pub-18 lished a range of documents; the ECtHR issued several judgments on prison con-19 ditions that found violations of Art. 3 ECHR; states from Middle and Eastern20 Europe that acceded to the Council of Europe in the 1990s relied on the EPR of21 1987 in the reform of their prison law; and the European Parliament (see above)22 as well as the Parliamentary Assembly of the Council of Europe called for an23 improvement of human rights protection in prison (Coyle 2006; Dünkel et al. 24 2006: 86).25 The EPR comprise 108 rules, some of them with several subsections and26 paragraphs, which are organized in nine parts. This hints at the ambition to27 provide a set of rules that cover all areas of prison life in a manner that is at28 times very detailed (e.g. part IV on good order) and at others leaves room for29 development (e.g. part VIII on sentenced prisoners). The EPR start with a30 general part containing nine basic principles and several provisions on scope and31 application. Parts I to VI apply to the detention of all prisoners (remanded in32 custody or sentenced), part VII contains special rules for untried prisoners, part33 VIII for sentenced prisoners and part IX/rule 108 states that the EPR shall be34 updated regularly. Parts II to VI regulate the conditions of imprisonment (II),35 health care (III), good order (IV), management and staff (V) and inspection and36 monitoring (VI). The basic principles:3738 • state that all prisoners shall be treated with respect for their human rights,39 and40 • retain all rights with the exception of those that are lawfully taken away41 from them by the sentence or the decision remanding them in custody;42 • call for minimum intervention and proportionality with regard to restrictions43 placed on prisoners;44 • state that a lack of resources is not a legitimate justification for prison con-45 ditions that violate prisoners’ human rights;

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