Contributions > Gaëtan Cliquennois, Sonja Snacken

Gaëtan Cliquennois
CNRS, University of Nantes/DCS

Sonja Snacken
Free University of Brussels

The ability of human rights to limit the state's right to punish, to soften penal policies in Europe and to connect prison, immigration, healthcare and psychiatric policies

Abstract

Our contribution questions the ability of human rights to soften penal policies and limit the European states’ right to punish in prison through an overlooked comparison between penal and prison policies pursued by the European Union and the Council of Europe. On the one hand, the European Court of human rights promotes decriminalization of drug offences, shorter prison sentences, alternatives to imprisonment (probation, tagging surveillance, conditional release), easier sentence implementation, building of psychiatric hospitals and expulsion of migrants in its case law on countries facing with prison overcrowding and poor prison conditions. In the same way, the European jurisprudence and the CPT standards have potentially some positive effects on the situations in which prisoners can be less punished: the release of very ill prisoners, the transfer of ill prisoners to hospitals and mentally ill prisoners to psychiatric hospitals. On the other hand and while the EU Court of Justice has integrated the European jurisprudence on human rights, one of the most important practical ways in which the EU in particular influences prison policies is in the provision of funding for programs of training, legislative reform and prison construction. We show that these EU programs of prison construction do not lead to an increase but are in line with softened penal policies conducted by the Council of Europe. Consequently prison litigation impacts positively the prison population in Europe and can even contribute to soften penal and prison policies despite some economic limits of legal aid and access to justice for detainees.