Topic Overview for the Committee on Legal Affairs I (JURI I)

Prison break: “With imprisonment posing an intrusion upon the freedom of movement and an uncertain outcome for short term jail sentences, which steps could the European Union and its Member States take to ensure an effective yet purposeful criminal justice system?

By Stephanie Reisinger (AT)

1. Relevance of the Topic

Bearing in mind the consequences a jail sentence has on a convict’s life and the restriction of their most fundamental rights, detention, in particular pretrial, should be regarded as a last resort. The UN Standard Minimum Rules for the Treatment of Offenders state that “the purposes of a sentence of imprisonment or similar measures […]are primarily to protect society against crime and to reduce recidivism.” In order to achieve this, jail sentences should be aimed at ensuring “the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.” Social rehabilitation thus forms a crucial part of criminal justice systems. 

While the duration of imprisonment decreased by 6.8% to an average of 8.2 months in Europe, the percentage of pretrial detainees increased from 17.4 to 22.4% of the total prison population in 2018. However, the European Court of Human Rights (p.62) notes that authorities have to be able to sufficiently justify pretrial detention, which should merely be the exception. In case of a severe crime, pretrial detention authorities can justify pretrial detention more easily. Despite these recommendations, studies depict that Member States lean towards detention over alternative sanctions.

Moreover, the effectiveness of short-term jail sentences in general has to be questioned. In England, almost two-thirds of people who were in prison for less than 12 months re-offend within a year. Additionally, it has been proven that the recidivism rate (p.7) of people who undertook alternative sanctions was lower than among people who spent their total jail sentence in prison.

3. Key Terms

Detention: A state legally holds a person by depriving them of a majority of their civil rights at that time. The reasons for this are (pending) criminal charges and the protection of civil society from another criminal act. 

Pretrial detention: People who find themselves in pretrial detention are accused of a specific crime – however, their trial has not begun yet. They are detained in order to restrict the possibility to flee the country or commit another criminal act.

Social rehabilitation: measures taken to ensure that the detainee reintegrates in society after their detention and that they will not re-offend. This may include educational training or support in finding work.

Recidivism: Describes the acts of an habitual criminal. It means that after being released, he or she commits a crime another or several time(s).

3. Stakeholders

Convicts are deprived of some of their most fundamental rights included in the European Convention on Human Rights. Deprived rights in detention are in particular their freedom of mobility and their right to respect for private and family life. After spending time in prison, they might be subject to discrimination and struggling to find a job. Thus, access to housing, employment and social reintegration into society is of utmost importance for them. Detention for considerably vulnerable groups, such as children, parents with young children, people with disabilities and transgender people, poses even more serious risks and the need for it has to be investigated carefully.

Certain Member States (MS) see the most effective way to restrain convicts or accused persons from fleeing the country or committing another felony in detention. Their priority is the protection of the rest of the population from any further crimes committed by this very person. However, the detention also comes at a cost. In 2014, MS spent on average 95€ per day and detainee (p.56), while some countries, such as Sweden, pay as much as 356€. Despite the fact that alternatives to detention (p.17) account – in most cases – for lower costs, MS still lean towards detention. Moreover, social reintegration of ex-convicts means additional costs and effort.

Due to the increasing cross-border nature (p.17) of crimes, the European Union has an interest in a coordinated justice system that restricts trans-border criminal activity, and that shows similarities across the MS. Moreover, social rehabilitation is likely to be more efficient in the country of origin or in a country, where the person has closer family ties and/or work or study connections.

Social rehabilitation of convicts is also of great importance for society at large. Taking a more inclusive stance towards former convicts not only reduces divisions within society, but also reinforces its cohesion and solidarity. This, in the long run, leads to more peace and stability.

4. Conflicts

Although the imprisonment rate in the European Union declined by 6.6% between 2016 and 2018, the detention rate (p.55) in the European Union is still higher than in other states of the world with a similar high GDP. Furthermore, several MS report overcrowded prisons, and with 95% (p.56), even the average occupancy rate in the European Union is on the verge of reaching its full capacity. Overcrowded prisons (p. 4) not only signify even more limited living space and a reduction of privacy for an inmate, but the quality of services offered to them is also prone to decline. Additionally, the support and supervision of detainees will be limited, which might result in inefficient social rehabilitation processes, radicalisation or increased violence within prisons.

With more severe crimes comes the pressing need for authorities to protect its civil society from any possible dangers posed by a specific person. In extreme cases, governments therefore prefer to detain the accused instead of considering any alternative measures. In general, alternatives (p.6) to detention comprise restrictions on movement, community service and communication restrictions or removal orders. Especially for vulnerable groups (for example children, parents with young children, people with disabilities, transgender people), the European Union (pp.71) advises considering detention only as the last resort. However, critics state that the lack of sufficiently severe sanctions increases the danger of recidivism.

5. Measures in place & status quo

International legislation comprises the Nelson Mandela Rules and 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty. These fundamental rights for prisoners are ratified by the United Nations. 

Rules that are in place on a European level comply with these international standards. However, they are more specific and adapted to European conditions. The European Prison Rules are non-binding recommendations, which state that the restriction of freedom must be proportionate and limited to cases in which detention is essential. Moreover, detention has to allow for social reintegration after imprisonment. They determine standards that have to be met in European prisons and services that have to be offered to inmates. For instance, recommendations for allocation and accommodation, hygiene and education are provided.

The CPT Standards have been developed over time by the Committee for the Prevention of Torture. They aim at preventing torture or degrading treatment of detainees in European prisons. In particular, they attempt to tackle problems such as overcrowding with stating a minimum standard for personal living space in prisons:
6m2 are the minimum size for single-occupancy cells, while 4m2 per prisoner are the minimum standard in multiple-occupancy cells. 

The Framework Decision on transfer of prisoners determines the circumstances in which a Member State (= issuing state) can transfer a specific prisoner to another Member State (= executing state). This executing state is in the following responsible for the supervision and imprisonment of the respective person. The Framework Decision on probation and alternative sanctions regulates the transfer of probation measures and alternative sanctions to be conducted in other EU MS. Finally, the Framework Decision on the European Supervision Order (ESO) provides regulations on the transfer of decisions on supervisory measures as alternatives to provisional detention to be supervised in another Member State.
The main purpose of these regulations is that by transferring inmates to MS where they are more socially rooted, for work, study or family reasons, social rehabilitation is facilitated.

As the area of freedom, security and justice is a shared competence, both the EU and its MS can adopt legally binding acts. Thus, concerning their criminal justice systems MS have direct legislative power only in those areas, where the EU has not exercised its competence. 

6. Food for Thought & Brain Munchies

  • Should short-term jail sentences be abolished?
  • What are efficient alternatives for short-term jail sentences that do not pose high risk of the felon committing another crime?
  • How can the European Union ensure that Member States only impose detention as a last resort?
  • How can prisons be managed to ensure humane treatment of detainees?
  • What measures can be taken to facilitate social rehabilitation?

7. Links for Research

Report on Prison conditions in Member States, summary of measures in place and current problems present in European prisons

Article on the discussion on the abolishment of short-term jail sentences in England

– Video showcasing how a French prison supports inmates to ensure social rehabilitation

– Video on the philosophy behind architecture of Norway’s Halden prison

Article on significantly rare cases of detention in the Netherlands