1. Mutual Recognition & Custodial Sentences Or Measures Involving Deprivation Of Liberty
1 October 2010
Over next 20 minutes or so…share the preliminary conclusions of work we’ve been doing over the past year or so concerning material detention conditions and sentence execution in the EU
I’m going to highlight how the EU – under the auspices of the MR programme has moved into territory more traditionally occupied by the COE in respect of prisoner transfer, detention conditions and sentence execution
We’ll focus in particular how EU legislation on the Mutual Recognition of Custodial Sentences & Deprivation of Liberty - has implications in these areas
Specific attention will also paid to the those most affected by these instruments – those EU citizens imprisoned in countries other than their own – both in respect of their numbers and particular problems they face
I’ll conclude by highlighting a number of concerns which we feel are likely to surface concerning these pieces of legislation in the near future

2. Council of Europe – Material Detention Conditions & Sentence Execution
Convention for the protection of human rights and fundamental freedoms – articles 3, 5, 6 & 8 (1950)
Convention for the prevention of torture and inhuman or degrading treatment or punishment - (1987) – CPT, country visits & reports
Recommendation concerning foreign prisoners (1984) 
Convention on the transfer of sentenced persons (1983) – in most cases the consent of the prisoner, issuing state and executing state is required
European Prison Rules (2006)
Traditionally, questions relating to imprisonment, detention conditions and prisoner transfer in Europe have largely been the articulated via COE:-
Time constraints…but….key instruments…:-
European Convention on Human Rights & Fundamental Freedoms – 3 (torture and degrading treatment), 5, (liberty and security), 6 (fair trial), 8 (privacy and private life) – see also protocol 6 – restriction on use of death penalty
Convention for Prevention of Torture – CPT, visits, dialogue, reports
Recommendation on foreign prisoners - - isolation, language, customs - access to eductaion, work, visits, home leave, after-care
Convention on transfer of sentenced persons – prisoners convicted abroad can serve their sentence in their country of origin – in most instances requires consent of prisoner, sentencing state and administering state - voluntarism
EPR – human rights based instrument - states possess positive obligations to alleviate negative consequences of imprisonment – accom, health, visits, work
- Content strong but not legally binding

3. Material Detention Conditions - Concerns
CPT country reports – overcrowding, lack of work opportunities, education, rehabilitation, health care etc.
ECtHR jurisprudence
- Peers v. Greece (2001), Kalashnikov v. Russia
(2003) – prison overcrowding/article 3
- Dybeku v. Albania (2007), Keenan v. UK (2001),
health provision, article 3
- Szabó v. Sweden – early release, article 5
- Napier v. Scottish ministers – access to in-cell
sanitation/article 3
- Dickson v. UK – rehabilitation principles
Despite or perhaps beacuse of this legal and institutional framework, concerns continue to be raised concerning material detention conditions in European prisons:-
Illustrative examples:-
ECTP country reports – for example – Spain, Bulgaria, Greece, Portugal – 2000/07
Overcrowding, lack of work and education opportunities for longer term prisoners, poor access to and quality of healthcare, lack of services designed to assist with rehab
ECtHR jurisprudence:-
differing articles (3 and 8)
absence of positive intent on behalf of a state to humiliate or debase a detainee is not necessary for a state to be held culpable
European and member state level

4. How Many “Foreign” Prisoners Are There in The EU ?
European Sourcebook of Crime and Criminal Justice Statistics
(2007) – % of foreign prisoners in EU states – O.5/73%
9 EU countries gave data on EU nationals – 16/43%
Van Kalmthout et al (2007) – 100,000 “foreign”
prisoners within the EU (including: EU + non EU citizens,
untried and convicted prisoners, asylum seekers and illegal
immigrants)
23,000 EU citizens in foreign prisons - majority detained in
other EU Member States
Shortage of data – applicable prisoners
How Many “Foreign” Prisoners Are There in The EU ?
Precise estimates are not easy to come by
Differences in definitions
Scope of those included ( administrative detainees, ‘failed ‘asylum seekers or illegal immigrants, remand prisoners, convicted prisoners, those held in police stations or closed psychiatric units,)
Some states do not keep data on these issues
However….slide:-
Most EU citizens detained under criminal law provisions rather than admin/immigration law
Most detainees in most countries – offences relating to smuggling, trafficking, possession of drugs
Almost half detainees from 4 countries– Germany, Italy, Netherlands, UK – all of this can change quickly of course from the 2007 position

5. Foreign Prisoners – Specific Problems
Less or even no visits in comparison with “national” prisoners
Legal restrictions on language use – letters, telephone etc.
Restricted access to work, education and rehabilitation services
Poor quality of legal advice
Absence of aftercare
Low usage of existing international legal instruments concerning prisoner transfer
From the same study by Van Kalmthout et al – particular problems faced by foreigners imprisoned in countries other than their own:-
Less visits or none – cost, visiting hours, inflexibility of visiting regime, cost of interantional phone calls tec.
Legal restrictions on language use – guards must understand, letters, telephone calls
Access to work, education, rehabilitation,– restricted in any event and national language often a pre-requisite, little attention paid to rehabiliation as assumption made FP’s will not be remaining in the country in which they are imprisoned
Legal proceedings - foreigners often cannot underrstand proceedings even in their own case, poor quality of legal advice, poor level of consular contact
Absence of aftercare arrangements both in the country in which they are imprisoned and home countrty
Interantional legal instruments concerning prisoner transfer are little used – study found that disparities in sentencing practice and ignorance of instruments from both detainees and legal representatives was a key reason for this
Nos. of foreigners imprisoned abroad, the particular difficulties they face + low usage of COE instruments appears to constitute a cogent case for EU action in this area
Key question is – will the EU legal instruments soleve these problems ?

6. Treaty of Lisbon
EU Charter of Fundamental Rights is now legally binding on Member States
EU will accede to the European Convention for Human Rights & Fundamental Freedoms – article 6.2
Treaty gives the European Union the competence to accede to the European Convention on Human Rights of its own accord.
Once the accession procedure is complete, EU citizens claiming to be a victim of a violation of the Convention by an institution or body of the Union will be able bring a complaint against the Union itself before the European Court of Human Rights under the broadly the same conditions as those which currently apply to complaints against Member States.
Secondly, the entry into force of the Lisbon Treaty entails that the EU’s own Charter of Fundamental Rights is now legally binding on EU Member States. Taken together, these developments are intended to ensure that ECtHR jurisprudence and that emanating from the European Court of Justice develop in parallel with each other.

7. EU Charter of Fundamental Rights
No one shall be subjected to torture or to inhuman or degrading treatment or punishment – article 4
No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment – article 19.2
These issues are of central relevance to the EU acquis in the area of Mutual Recognition, sentence execution, prisoner transfer and detention conditions and it is on these questions which we will now focus.

8. FD Mutual Recognition Of Custodial Sentences
Allows for the transfer of sentence execution from one EU member state to another provided that certain procedural safeguards are satisfied
Includes list of 32 offences to which the principle of double criminality no longer applies
Key objectives:-social rehabilitation and reintegration of the offender
FD – Custodial Sentences & Deprivation of Liberty:-
Allows for the transfer of sentence execution from one EU member state to another provided that certain procedural safeguards are satisfied
Assumes that the defualt position is that sentence transfer will be recognised by the executing state except in specific circumsatnces
Includes the same list of 32 offences to which the principle of double criminality no longer applies as set out in the FD EAW
Key buzzwords within the framework decision assert that this process should be driven by:-
the need to assist with social rehabilitation and reintegration of the offender

9. FD Mutual Recognition Of Custodial Sentences
Therefore:-
the enforcement of a sentence in the executing state should enhance the possibility of the social rehabilitation of the sentenced person and the issuing state can satisfy themselves that this is the case - clause 9, article 3.1
Member States are required to adopt measures by which their competent authorities will take decisions as to whether the forwarding of a judgement will in fact facilitate social rehabilitation of the sentenced person – article 4.2/4.6
These principles are given effect in the FD in its stipulations:-
that enforcement of a sentence in the executing state should enhance the possibility of the social rehabilitation of the sentenced person and that the issuing state can satisfy themselves that this is the case.
that Member States are required to adopt measures by which their competent authorities will take decisions as to whether the forwarding of a judgement will in fact facilitate social rehabilitation of the sentenced person.
There are, therefore, clear practical obligations on member states to make these principles work.

10. FD Mutual Recognition Of Custodial Sentences
Executing state (ES) can adapt a punishment or refuse to recognise or execute a judgement if it contains aspects which are incompatible with its legal system - articles 8.2/8.3 en 9.1 (k)…
Sentence duration: sentence > permissible penalty in ES = Adapted sentence = maximum possible ES penalty
Sentence nature: adaption to normal punishment in ES for similar offence
Psychiatric/Health care measures
Departing from the notion of MR in its purest sense, an executing state is permitted to adapt a punishment where the original sentence is incompatible with its laws in relation to length and nature
Length – length of sentence cannot be increased by an executing state but can be decreased if a maximum penalty ceiling exists for a similar offence.
This is of course begs the question as to what consitutes a similar offence...
Nature - the adapted sentence must still correspond as closely as possible to that imposed in the issuing State
An executing state is permitted to refuse to recognise or implement a sentence where it contains:-
Psychiatric or health care or other measures involving deprivation of liberty which cannot be executed in accordance with executing state’s legal or health care systems

11. FD Mutual Recognition Of Custodial Sentences
Transfer can proceed without the consent of the sentenced person - article 6.2. – new policy choice and significant departure from “voluntarist” principles of previous legal instruments governing prisoner transfer
Conditional or early release – issuing state can request information on executing state’s conditional/early release arrangements – can stop transfer process if not satisfied – article 17.3
Aside from issues relating to the determination of sentencing equivalence, three specific aspects of the FD give us some cause for concern:-
1. Consent - sentence transfer can proceed in certain circumstances without the consent of the sentenced person
This is a highly significant departure from the consent based approach underpinning the 1983 COE Convention on the Transfer of Sentenced Persons
Conscious policy choice on behalf of the EU – the involvement of sentenced persons in proceedings “should no longer be dominant by requiring in all cases his or her consent to the forwarding of a judgement to another MS for the purpose of recognition and enforcement of senetence
2. HR Protection - lesser degree of human rights protection than FD EAW – no mention of torture, inhuman or degrading treatment or punishment as grounds for refusal to transfer sentence execution
3. Conditional or early release – issuing state can request information on executing state’s con/early release arrangements – can stop transfer process if not satisfied

12. What’s Required ?
Successful operation of the framework decision requires:-
- in-depth knowledge of both prison
regimes & sentence execution in EU Member
States
- objective criteria to base decisions around
rehabilitation
In practice a number of problems may become apparent:-
It seems clear to us that the successful operation of both these framework decisions require fairly in-depth knowledge of both prison regimes and the execution of sentences in EU Member States
Also some objective criteria around which to base decisions around the rehabilitation principle
Such issues also apply, although to a lesser degree, to the FD concerning probation and alternative sanctions
In practice, a number of problems are likely to become apparent

13. Problems…
Considerable differences exist in laws concerning custodial sentences in EU Member States
Sentence execution modalities - electronic monitoring: – independent “stand –alone” sanction or a component of a wider sanction – e.g. conditional release, probation etc.
Material Detention Conditions – legal position and rights of prisoners, access and quality of health care, disciplinary procedures and the handling of offences committed in prison, access to visits etc.
1. Considerable differences exist in law concerning custodial sentences in EU Member States
Sentence execution modalities for example:-
– electronic monitoring – an independent “stand –alone” sanction or a component of a wider sanction – e.g. conditional release, alternative to custody etc.
– see also weekend prison – Scandinavia but not UK
Material Detention Conditions
– legal position and rights of prisoners
access and quality of health care
disciplinary procedures and the handling of offences committed in prison
overcrowding
access to visits and contact with the outside world etc.

14. Potential Problems…
- Regulations governing conditional or early release - Is Determination of sentencing equivalence by an executing state likely to be problematic (particularly in light of the abolition of double criminality determination in many cases) ? - Harsher sentences are not permitted (is a “standard punishment tariff” therefore required ?)
Regulations governing conditional or early release
– some Member States make no distinction between “foriegn” prisoners and national prisoners – same stipulations apply to both
– in other states, specific provisions apply only to foreign prisoners
Also types and conditions attached to early release, timing, criteria used in taking decisions (see position of the victim)
The determination of sentencing equivalence by an executing state is likely to be problematic particularly in light of the abolition of double criminality determination in many cases
As the imposition of harsher sentences by an executing state is prohibited, there may be a need to develop some form of standard punishment tariff

15. Potential Problems…
2. Differing interpretations of the requirements on Member States to assess social rehabilitation – generically or on a case by case basis ?
3. Issuing states may have insufficient information concerning the criminal justice and prison systems in an executing state on which to base decisions concerning transfer
4. Sufficient information may be obtained but this only serves to highlight concerns relating to – for example – material detention conditions in the executing state.
2. Gissing states may have insufficient information concerning the criminal justice and prisons systems in an executing state on which to base decisions concerning transfer
For the FD Custodial Sentence to work as its authors seemingly intend, information concerning an executing states prison regime and aftercare arrangements required – to allow issuing states and prisoners themselves to make informed choices
No system by which such information can be accessed currently exists.
Such a system would not, however, solve all problems as:-
3. Sufficient information may be obtained but this only serves to highlight concerns realting to – for example – material detention conditions in the executing state.
4. These concerns are sufficient to undermine the rehabilitation principle and the commitment to respect human rights whihc is supposed to underpin the FD on custodial sentences and the MR process respectively
Two possible results - Transfer refused or goes ahead despite concerns – neither situation is satisfactory
See importance of ECtHR jurisprudence etc.

16. Problems…
5. These concerns undermine rehabilitation and the commitment to respect human rights underpinning the FD and the general MR process 6. Transfer of prisoners without their consent increases the importance of observance with international human rights norms – ECHR, EU Charter of Fundamental Rights
5. Transfer of prisoners without their consent not consistent with the EU’s policy committment to enhance individual rights within the MR process
Absence of HR protection in FD Custodial Sentences is particulary disappointing
Problem more apparent given the deliberate policy choice taken by the EU over restrictions on consensual transfer
6. All of these problems may impact in judicial confidence in these two instruments and therefore on the MR objective of enhanced legal certainty within the EU
May also impact on the wider MR process itself by a process of creeping contamination